Getting a Fair Divorce Settlement
One of the most important decisions to be made on separating is how the financial needs of the family are going to be met in the immediate and longer term future. Coming to an agreement on the divorce settlement is usually the main cause of worry for, and disagreement between, the parties.
There are various ways in which an agreement about the finances can be reached and then put into place. The key to reaching a settlement is for both of you to be open and honest about your financial circumstances and your financial needs from the outset.
You may be able to agree between yourselves what is in the best interests of both of you and any children you may have. You will both need to be open and honest about your financial circumstances to enable you to make sensible decisions about what you will each need to meet your requirements for housing, income and also for future financial arrangements such as pensions.
If you have already reached an agreement, then you can ask the court to incorporate that agreement into the terms of a court order as part of your divorce proceedings. This will ensure that your agreement is legally binding for both of you and may help you implement some of the decisions you have reached.
Reaching a financial agreement
If you cannot agree between yourselves or feel that you need help in agreeing some points, then you may consider mediation or a collaborative law process.
Mediation gives you both an opportunity to explore options about issues surrounding your separation in complete confidence with the help of a trained mediator who will give you both an opportunity to state your case, evaluate possible options and find some common ground. Mediation can also help to identify areas where the parties are willing to compromise and to build a better working relationship for the future to deal with any issues that may arise. The mediator is not there to give either of you legal advice, indeed many mediators are not legally trained. Instead they will help you work things through in a constructive way, exploring options and helping to draw conclusions.
It is important that each party obtains legal advice from a family lawyer during the mediation process, to ensure that important factors are not overlooked. For example, a divorce settlement should take into account all financial assets, property, pensions, savings, investments as well as any debt held by the parties.
If you come to an agreement through mediation your lawyer will advise you as to the best way to record the financial agreement you have reached. If you cannot reach an agreement at mediation or via a negotiation process involving your lawyer, then either of you may decide to make an application to court for a Judge to decide how financial matters should be dealt with.
Using a collaborative process to reach a divorce settlement
A collaborative law process works in a similar way to mediation, in terms of helping the two of you to have constructive discussions and to reach a compromise and agreement as to what should happen in the future. The format of the meetings is different from mediation as both parties are accompanied by their lawyers. The benefit of this is that your lawyers are there to give you independent legal advice about any issues that arise during the meetings, rather than having to go away, get the advice and then reconvene the meetings at a later date.
At the beginning of the collaborative family law process, all parties agree to work together to try and reach an agreement which best suits the needs of you and your family. The process allows for practical and constructive problem solving to take place to ensure that each party’s financial future is considered and needs are met. If an agreement is reached, then the lawyers will prepare the documents recording the agreement which can be approved by a Judge as part of the divorce proceedings. In the event that the process does not produce any agreement, then either of you can consider making an application to court, but usually your lawyers will not continue to represent you as they have been party to open, honest and frank discussions during the process that would not usually be known to them in a traditional legal setting.
Asking the Court to decide on a settlement
If no agreement can be reached, whether through mediation, a collaborative or traditionally negotiated approach, then an application can be made to court by either party. It’s true to say that in many cases a court imposed arrangement does not satisfy both parties, or sometimes either of them. The traditional route of asking the court to make decisions is less common than it used to be and can be a costly exercise, with more and more people choosing now to take control of their own futures, rather than leaving such decisions in the hands of the Court.
Getting legal advice on your divorce settlement
You should always consider taking legal advice about what types of financial settlements are appropriate and enforceable even if you believe you will be able to agree matters with your partner. You need to know that decisions you make about how to share various financial assets, including property, pensions, savings and investments wont have a negative impact upon you that perhaps you had not thought of.
Once you have reached an agreement about your finances you will want to make it legally binding. It is good practice to have a legal document drawn up setting out the divorce settlement and any expectations that you each have of the other in ensuring that the terms of the agreement are implemented and effective.
For advice on agreeing a fair divorce settlement or help to make the settlement legally binding contact Woolley & Co on 0800 3213832.