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What’s considered fair in a divorce settlement?

What’s considered fair in a divorce settlement?
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No one expects to get divorced. But if your marriage breaks down, what happens next? What can you claim, and what’s ‘fair’ on both parties? It all comes down to the divorce settlement.

Here’s how a divorce settlement works, and some tips for ensuring you get a fair outcome. 

What is a divorce settlement?

Think of a divorce settlement as a financial agreement. It sets out how you plan to divide assets and liabilities (like debt) after the divorce, and determines what financial support either spouse receives. Here’s what’s included.

Matrimonial assets

It’s a matrimonial asset if you or your spouse acquired it during the marriage. Examples include:

  • Family home or holiday home 
  • Pensions
  • Savings
  • Businesses
  • Investments such as stocks and mutual funds 
  • Cash 
  • Furniture 

Matrimonial assets are always included in divorce settlements. So, for example, if you set up a small business after getting married, your spouse still has a claim on its value. You’ll also share responsibility for paying off matrimonial debts like mortgages and car loans. 

Non-matrimonial assets

Essentially, non-matrimonial assets are those you acquired before the marriage. This can be anything from savings to real estate.

  • You can sometimes keep non-matrimonial assets.
  • However, if you use premarital funds to buy a matrimonial asset, like the family home, it’s classed as a matrimonial asset. In other words, it’s part of your divorce settlement.   

To be clear, you’re responsible for your own premarital debts. 

Child maintenance payments

Do you have children together? You’ll need a separate agreement for child custody and maintenance payments. 

Is everything split 50/50?

No, it’s not. But why not? 50/50 seems reasonable, right?

Wrong, unfortunately. The courts don’t necessarily aim for a 50/50 split. Instead, they aim for what’s fair for both parties. Here’s what they might consider. 

  • Future earning power 
  • Childcare arrangements (e.g. perhaps you gave up work to raise the family and you’ll need extra financial support)
  • Economic needs 

What’s fair varies widely from marriage to marriage, but it’s a good idea to simply start from a 50/50 split and work from there. 

Do I need a solicitor?

Usually, yes. While it’s great if you and your partner can agree informally on who gets what, you’ll still need a lawyer to make it into a formal agreement. 

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Is a divorce settlement legally binding?

Not automatically, no. To ensure the settlement is legally binding, get a consent order that sets out what you’ve agreed. A family law solicitor can draft this for you. 

If there’s no consent order, the court can’t enforce your agreement, and your partner can change their mind at any time.

Does a prenuptial agreement affect my divorce settlement?

It can, yes. Although a prenuptial agreement isn’t legally binding, courts give them serious consideration when deciding how to split assets. 

If you’re both still happy with the terms of the prenup, you can base your divorce settlement on the contract. 

What happens if I can’t afford maintenance payments?

You might struggle to pay maintenance if your circumstances change (e.g. you lose your job). It’s possible to get the maintenance order varied, so talk to your solicitor.  

Should I make a new will?

You don’t need a new one, but you should update your old will. Divorce changes how your spouse is treated in your will, which could affect what your loved ones inherit

Always get legal advice about your will if you’re divorced.

Who pays the legal fees in a divorce?

Usually, you pay your own legal fees. However, you might agree for one party to pay most or all of the legal fees – again, it’s all about what’s fair. 

I’m about to get divorced. What’s my first step?

First, list all of your assets and liabilities. Don’t try to hide anything – you could be heavily penalised. Once you’ve listed everything:

  • Try to discuss a fair split with your partner. The more you can agree on, the easier the process. 
  • If you’re worried about your spouse withdrawing money from joint credit cards or bank accounts, consult a family lawyer quickly. They can advise you on what steps to take to protect joint accounts. 
  • Ideally, aim to reach a financial settlement before the divorce takes place. 

Above all, try to avoid fighting. Sure, tensions are high, but it’s best for you both if you keep things civil. 

Takeaway

While divorce is incredibly stressful, your divorce settlement can give you reassurance and peace of mind for the future. If you’re worried about legal fees or you don’t know where to turn, contact Citizens Advice for help. 

And, if you want a rough idea of what you can expect from a financial settlement, check out the divorce calculator from the Money Advice Service. It’s no substitute for legal advice, but it might help you manage your expectations.

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