How Do You Split Assets in Divorce?
30 January 2018
When getting a divorce, you and your ex can decide how to split your assets, or if this isn’t possible, you can ask the Courts to decide instead. If you go to Court, a Judge will make a decision based on what is fair and reasonable to each person.
Deciding How to Split Assets in Divorce
During the course of a marriage your financial assets usually become entwined, so that if the marriage breaks down, it’s quite difficult to figure out how these assets should be divided. So what do you do?
Well, before you take the matter to Court, there are a number of options open to you. Firstly, you might be able to come to an agreement between yourselves. This is particularly common where a Prenuptial Agreement has been put in place, as there will already be an understanding as to what should happen to your financial assets.
Or you might be near to reaching an agreement, but find that there are a few sticking points that you remain in dispute over. If so, you could always attend mediation, where an independent third party helps you and your ex find a solution that you’re both happy with.
Alternatively you could negotiate through your Divorce Solicitors. This will involve instructing a Divorce Solicitor to act on your behalf. This can have many benefits. For example, a Divorce Solicitor can advise you on your legal entitlements, and can identify any anomalies that may indicate that your ex is hiding assets from you.
If you do reach an agreement between yourselves, or with the help of a mediator or Divorce Solicitor, it’s always best to make it legally binding. You do this by making an application to the Court for a Consent Order.
The benefit of a Consent Order is that each person has formally agreed to the financial settlement, and so cannot go back. It also draws a line under the financial ties that exist between you.
Going to Court
If you cannot come to an agreement about how your assets should be divided, your final option will be to take the matter to Court. Typically there will be three hearings in front of a Judge who will then make a final ruling as to how your financial assets should be split.
There’s no set formula that the Judge will follow. For instance, it won’t automatically be a 50/50 split. It also might not be as clear cut as you think. One example is the family home – even if it’s in one person’s sole name, the other may still be entitled to remain living there.
The main factor that will guide a Judge’s decision is the needs of those involved – particularly any children. The welfare of children will be a priority, and the aim is to cause as little disruption to their lives as possible.
The other factors that the Judge will take into account include:
- Your age
- Your earning capacity
- The length of your marriage
- Your role in the marriage – for example, if you were the breadwinner or the primary carer for the children
- The financial needs of each person
- The standard of living enjoyed by each person.
All of these things will be considered by a Judge before a final decision is made. The decision will be based on what is fair and reasonable, even if you do not necessarily agree that it is. So while assets may be divided equally, if the Judge believes that in your particular case there is good reason to apportion assets unequally, then he/she has the discretion to do so.