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Posted 26 February 2016
by Tracy Lambert

Divorce FAQs



Read our comprehensive guide on your individual rights when going through a divorce.

Does the reason for the divorce affect how the financial settlement is worked out?

Very rarely. In general, any financial settlement should be fair and give priority to the welfare and needs of any children. Behaving badly or committing adultery does not affect this.. In relation to any financial settlement only extreme behaviour may be taken into account. If one partner recklessly or deliberately sabotages the financial position, for example, by spending recklessly or destroying assets, this could be taken into account. Behaviour may, affect any agreement over who looks after any children and what contact is allowed.

When do we need to agree a financial settlement?

At any time before during or after you divorce, although it is advisable to do so before either partner remarries. The court can then be asked to make any relevant financial orders at the same time as the granting of the decree nisi (when the court agrees that grounds for divorce have been proven, however, there is a further delay until the decree absolute finalises the divorce).

Will it make any difference if I move out of the family home before we are divorced?

You will still have the same rights to occupy the home as you had before and can move back in if you choose. There may be practical problems if, for example, your spouse changes the locks. While you will be entitled to get back in, it makes sense to ensure that you take anything you may need – such as important documents – with you in the first place. There may also be other considerations and it is advisable to take advice before moving out.

Are there any precautions I should take, for example, to stop my spouse taking cash from our joint account?

If your spouse can make withdrawals from a joint account without your agreement, you run the risk that some or all of the money will be taken or even that the account is sent overdrawn. You will be jointly liable for any debts run up on the account. If you need access to the money or if you suspect that your spouse may misuse it, you may want to close the account. The same applies to any other form of joint borrowing or spending facility, such as a joint credit card. However, if you suddenly freeze accounts that your spouse needs for living expenses, this will create problems. Your spouse will want you to make appropriate maintenance payments and may apply to the court for an interim financial order.

Can a man claim maintenance from his ex-wife?

There is no reason why a man should not be able to claim maintenance, for example, if the woman is a high-earner. A fair settlement should take into account the same factors regardless of gender.

What happens if one of us remarries or starts cohabiting with a new partner?

If you remarry without having reached a financial settlement with your former spouse, you may lose the right to make any financial claim against them. He or she will still have the same right to make a financial claim against you as before.

The financial resources of the new partner or spouse will be taken in to account in determining the level of the financial settlement.

If you are paying your ex-spouse maintenance (this does not include child maintenance), maintenance ceases if the recipient remarries (but not if the recipient merely starts to cohabit). If you are receiving maintenance from your ex-spouse, you should normally continue to do so after he or she remarries.

In any case, if your former spouse’s financial position improves, you can apply to the court to stop paying maintenance or to pay a reduced amount.

Can I settle any financial claims once and for all when we divorce?

In many cases, yes. For example, a spouse who would have paid maintenance to the other can instead agree to transfer an appropriate lump sum and/or other assets. Of course, this may not be possible if sufficient assets are not available.

Once a ‘clean break’ agreement of this kind has been ratified by court order, neither of you will be able to go back to court in the future to ask for maintenance or further transfer of assets. This gives both partners a much greater degree of certainty and allows them to completely disentangle their individual financial affairs.

However, it is not possible to agree a ‘clean break’ in respect of your obligation to provide maintenance for your children.

Who pays the legal fees in a divorce?

While negotiating a financial settlement you each use – and will be responsible for paying – your own lawyer. As part of the settlement, however, one of you might negotiate that the other should pay part or all of their legal fees. You can keep your legal fees down by agreeing as much as possible among yourselves. Fees can mount up if hostile spouses insist on conducting all negotiations through lawyers while arguing over trivial details.

Do we have to go to court to get the settlement approved?

Unless you get a court order (or an order by consent), either of you will be able to change your minds. To get any form of clean break, you must have a court order.

Should I make a new will?

We strongly recommend that you make a new will on divorce.

 

For those contemplating divorce, it is important to seek advice early on the different approaches available so that you can make it as smooth as possible for your family. Contact us at Tozers Family Divorce Lawyers for all your divorce queries.

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Alternatively you can call us on 01392 207020.

About the author

Tracy Lambert

Partner

Partner based in Exeter's family team