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How to Protect Finances During Divorce

Protecting finances during divorce is one of the main concerns that our clients come to us with. This is understandable, as uncertainty in this area can cause some distress.

Before we can look at how to protect finances during divorce, we need to understand that the prospect of untangling a long financial history with a spouse can seem like a formidable task. As daunting as it may be, it is important to begin the process of dealing with the family finances as early on in the divorce process as possible. 

Gaining a good understanding of your financial situation now, and what it may look like after divorce, is a key part of the divorce process.

How to protect money in a divorce

Make a list of everything you and your spouse own or owe

Knowing exactly what your financial situation looks like is essential. That way, you’ll be able to make plans for how to deal with the financial implications of your divorce.

Write down any assets that you have bought together. Have you taken out any loans to fund these purchases? For example, do you and your spouse have a mortgage together?

Include any investments that you have made as a couple, such as any shares you have bought.

It’s vital to agree how you are going to deal with any bills while the divorce is going through in order to avoid running up debt or damaging your credit rating.

Start making contact with banks, loan providers and the like

If you’re sure that you and your spouse are going to go your separate ways, it’s wise to make contact with any loan providers or banks with which you and your spouse have joint loans or bank accounts.

They should be able to advise you of what your options are with regard to your accounts and loans. For example, your bank could offer you the option of freezing any joint accounts.

Pre-nuptial and post-nuptial agreements

If you are not yet married, pre-nuptial agreements, also known as pre-nups, enable you and your future spouse to specify what should happen to your assets if you divorce. A pre-nup which includes your business, may help to avoid any future issues.

If you are already married, a post-nuptial agreement may be possible.

Although these agreements are not legally binding, they will usually be taken into account by the courts, as long as certain procedures have been followed.

If you are worried about how your business will be affected by your divorce, it is highly recommended that you seek legal advice from a specialist solicitor.

How can I protect my family home?

The family home can often be one of the largest, if not the largest, asset in a divorce settlement. If the family home is owned solely by your spouse, it may be possible to register your interest in it to ensure that it is not sold without your knowledge. Speak to your solicitor for more information about this.

There may also be instances when you would want to change the way the family home is owned. For example, if you are ‘joint tenants’, your spouse may get your share of the property if you die before the divorce is finalised.

If you’re renting your family home, who is responsible for the rent and how long you can live there (or conversely, how long until you can leave the tenancy agreement) will depend on your contract. If you want to leave before your tenancy agreement is up, you could try to talk to your landlord to see if they’d be willing for you to do this.

First of all, you need to decide who owns the house

Is it owned by only one of you or is it owned jointly?

If the family home is owned by only your spouse and not you, you should be able to register your interest in the property. If your property is registered with the Land Registry in England and Wales, you can use a ‘home rights notice’ to do this. If your property isn’t registered, you’ll need to apply for a ‘class F land charge’ at the Land Registry.

Once you’ve done this, your spouse won’t be able to sell the property, or even get a larger mortgage on it, without you being notified.

It’s worth remembering that just because the house is in your spouse’s name and not yours, it will still be part of the ‘pot’ of marital assets when it comes to negotiating your financial settlement. Your spouse cannot leave it out of the marital assets just because it is in their name only.

If the family home is owned by both you and your spouse as joint tenants – where you both own the property equally – you may want to change the ownership to tenants in common (where you both own a share). This way, your share of the home isn’t automatically passed to your spouse if you die before your divorce is finalised.

Then, if you have a mortgage, you should tell your mortgage lender of your separation. If your name is on the mortgage, you’re liable for the whole of the debt – whether your spouses’ name is on there or not.

What about if I brought the property into the marriage?

If you owned the property before you married your spouse and it is in your sole name, this could make a difference to your settlement. If this applies to you, you must get specialist legal advice.

Making sure your family home is protected is an important part of the divorce process. If you’re worried about your position it’s best to get expert legal advice as early on as possible.

For more information on this subject please visit our Legal Library.

Protecting your business in divorce

Your divorce and business settlement can be a complicated matter to resolve. Whether you’re going through the divorce process or are about to get married, it’s vital to understand the possible implications for your business. Under English and Welsh law, when considering divorce and business settlements, a business is usually seen as a ‘matrimonial asset’ when it comes to a financial settlement upon divorce. As a result, your business may be included as part of the financial settlement.

What are the possible outcomes?

If you and your spouse were unable to reach an agreement about your financial settlement (how your assets would be divided upon divorce) and the family courts were asked make the decision for you, there are a number of possible outcomes, including:

  • You keep the business but your spouse is compensated elsewhere – A judge may decide that you can keep your business but your spouse should be given a larger share of, for example, the family home.
  • You divide the shares – In some circumstances, the courts may decide that dividing the shares between both spouses may be the best option. Alternatively, a judge could come to the conclusion that sharing the income would be appropriate.

Sometimes, it may be necessary for two people who are divorced to regularly be in touch with each other to deal with business issues. Obviously, this may not be ideal, especially with the courts’ emphasis on clean breaks, but in some circumstances there may be no other suitable options.

Other financial assets and how to protect them

It may be possible, in some circumstances, to go to court to ask a judge to stop your spouse from selling or transferring any assets or moving them abroad when dealing with your finances during divorce.

This is a highly complex area of law, so it is vital to seek advice from a solicitor if you are concerned that your spouse is about to do this.

Consider mediation or collaborative law

Asking a judge to decide your financial settlement upon divorce should normally be viewed as a last resort. Not only can going through the courts be time-consuming and costly, it ultimately takes the final decision of how your assets should be divided out of yours and your spouse’s hands and into the hands of a judge.

Reaching an agreement outside of the courts is usually the preferred option. This way, you and your spouse may be able to work towards an agreement that both protects your business and provides a financial settlement with which you are both satisfied.

If you are unable to decide how your assets should be split between yourselves, there are other options available. Mediation, for example, where an independent third party aids discussions between you and your spouse, can be helpful in some circumstances.

Collaborative law, a series of 4-way meetings between you, your spouse and your respective solicitors, may also help you to reach an agreement with your spouse.

Should I use a divorce solicitor to negotiate my finances during divorce?

Deciding whether to negotiate your finances during divorce yourself or get your solicitor to negotiate for you is a big decision for many people. As with everything, there are both advantages and disadvantages.

One of a few downsides to getting a solicitor to negotiate your financial settlement on your behalf is expense. Depending on your situation, negotiations can take a long time. As most solicitors charge by the hour, this can end up running into a large bill. However, a good solicitor negotiating on your behalf can help you settle your finances during divorce in your favour. Some solicitors will also offer fixed fee negotiations.

Sometimes, solicitor negotiations can make things more difficult and tense between you and your spouse. A specialist solicitor should be able to keep this to a minimum through effective negotiations.

You could also feel that you have lost control of your negotiations of your finances during divorce if your solicitor is doing your negotiations for you. If you hire a good solicitor then they should make sure that you still have input into and control of the negotiations and indeed the divorce process as a whole. Austin Kemp’s experienced solicitors can talk you through the pros and cons to help you make the right decision for you.

Do you need help with advice on finances during divorce?

Our expert divorce and family law solicitors can help you with a range of legal issues, including:

Contact our expert solicitors to see how we can help you protect your money in divorce

For more information on the divorce process call our expert mediation solicitors on 0845 862 5001 or email mail@austinkemp.co.uk.

Our expert mediation solicitors offer a nationwide service. We have client meeting office facilities available, in order to have face-to-face client meetings/conferences as and when required in:

Please contact us for more details.

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20th May 2022

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