Many people assume that once they get their final order of divorce their ex-spouse has no further claims against them or their estate. Family lawyers and Will solicitors say that is not correct.
In this article, our lawyers look at when an ex-wife can make a claim against an estate and what you can do about it to protect your estate and your beneficiaries.
For expert family law and Will advice call our team or complete our online enquiry form.
Financial claims after a separation or divorce
When you separate or divorce your ex-partner their financial claims remain intact until you reach an enforceable agreement or the court makes a financial court order.
Even if you reach an agreement or the court makes a financial court order your ex-spouse may still retain all or some of their financial claims. That is why it is essential to use a family law solicitor to help you negotiate a financial settlement or to draw up your financial court order. It is equally important that your solicitor explains what the wording of the order means.
The only way you can achieve finality with no risk of further financial claims is if the court makes a clean break financial court order.
What is a clean break financial order?
A clean break financial court order can be made by agreement ( you and your ex-spouse ask a family judge to convert your agreement into a binding court order) or after a contested court hearing. Clean break orders can be confusing as there are 2 types:
Immediate – as soon as the court order is made your ex-spouse cannot make any further claims or they cannot do so once the order is implemented. For example, an order will be implemented after the sale of a family home, the agreed division of equity, and the pronouncement of your final order of divorce
Deferred – the clean break comes into effect when an event occurs. For example, if you are ordered to pay time-limited spousal maintenance the clean break may come into force when the spousal maintenance payments end. A deferred clean break can be confusing as the court order may allow the person receiving the spousal maintenance to apply to the court to extend the length of the spousal maintenance order or the person receiving the spousal maintenance may ask the court to make a lump sum payment or pension sharing order in their favour instead of them continuing to receive ongoing spousal maintenance. Some court orders do not allow the person receiving spousal maintenance to apply to court to extend the maintenance term
As clean breaks are complicated it is best to take legal advice on your financial settlement to see if you are likely to be able to achieve one and whether it is in your interests to do so. For example, if your ex-wife is in a new relationship and you think she will remarry you may not want to give your ex-wife more money to buy off her spousal maintenance claims. Why? Spousal maintenance automatically stops on re-marriage and it cannot be revived if the ex-wife’s second marriage breaks down. However, if an ex-wife cohabits rather than remarries you will only achieve a clean break if the spousal maintenance order provides for this.
Your priorities and goals
It is important that your family law solicitor takes their time to understand your priorities and goals. Some people are adamant that they want a clean break. There may be reasons for this, such as a bad experience in a first divorce, the future anticipated sale of a business, or wanting to protect your children from your ex-wife making a claim against your estate. Other people may be more sanguine about negotiating a clean break order. For example, if you do not have children and are not worried if your ex-wife tries to make a claim against your estate as you are leaving most of your money and property to charity and know that your executors can fight the claims in the unlikely event that your ex-wife brings a claim against your estate.
Can your ex-wife make a claim against your estate?
Whether your ex-wife can make a claim against your estate will depend on whether you have a financial court order, its precise terms, and whether your ex-wife has remarried.
If you are concerned that your ex-wife may have a claim against your estate under the Inheritance Act then talk to a Will solicitor. She will still have a potential claim even if you make a Will and cut her out. That is because under the Inheritance (Provision for Family and Dependents) Act 1975 anyone who falls into one of these categories of people has a potential claim against your estate:
A wife, husband, or civil partner
A former wife, husband, or civil partner (provided they have not remarried)
A child or someone treated as a child by the deceased
Someone who was living with the deceased for the 2 years before the deceased’s death
Anyone who immediately before the deceased’s death was financially dependent on them
A private client solicitor can provide you with estate planning advice and draw up a Will that reduces the risk of your ex-wife bringing a 1975 Act claim. They can also work with a specialist family law solicitor so you can explore whether it is worth asking the court to make your existing financial court order into a clean break order. This may be possible if, for example, the court left spousal maintenance open-ended because your ex-wife might need spousal maintenance in the future but she has been in a long-term cohabiting relationship so you think the time is right to secure a clean break.
At Evolve Family Law our family law solicitors work closely with our private client and Will lawyers and recommend that when you separate you think about making a Will or changing the terms of your existing Will.
For expert family law and Will advice call our team or complete our online enquiry form.
There was a time when few of us had heard of digital assets and cryptocurrency but when you are separating in an age where almost everything is carried out electronically and online it is important that your divorce solicitors understand the range of assets that your husband, wife or civil partner may hold and how to trace them.
In this article, divorce financial settlement solicitor, Robin Charrot, answers your questions on divorce and digital assets such as cryptocurrency.
For expert Divorce and Financial Settlement advice call our team of specialist divorce lawyers or complete our online enquiry form.
What are digital assets in divorce proceedings?
There is no definition of a digital asset in divorce proceedings. That is probably sensible because the world of digital assets can change so fast with the latest developments in tech and online options.
Divorce solicitors find it best to outline the type of digital assets that you or your spouse might own to trigger a discussion about what you or your husband or wife might hold digitally. It is important to do that as whilst you may not forget about the existence of a holiday home, a collection of watches, or your partner’s shares in the family business, you may easily forget about an online bank account or the cryptocurrency that your spouse told you seemed like a good investment at the time.
Digital assets can include:
Online share dealing account
Online gaming and betting accounts
Income-generating social media accounts
Sentimental assets such as some types of social media accounts and photo libraries
Is cryptocurrency relevant to divorce financial settlements?
Digital assets such as cryptocurrency can be family assets in the same way as a property, pension or business can be. Just because something is online and not physical does not mean that it is not relevant to your divorce financial settlement.
Reaching a fair divorce financial settlement involves:
Working out what assets a husband and wife own individually or jointly or with a third party
Tracing assets where there are valid suspicions that assets have not been fully disclosed by the other party to the marriage
Getting the assets accurately valued
Understanding if the assets should be treated as family assets – even if the asset is not a family asset the court can have recourse to it if it is necessary to do so to meet a husband or wife's needs
Negotiating a divorce financial settlement and if that is not possible representation in divorce financial settlement court proceedings
Dealing with cryptocurrency in divorce proceedings
A good divorce solicitor combines bloodhound tracing skills with technical knowledge and a large dose of pragmatism. For example, an eBay account may not sound significant but it is if it is the prime source of sales in a family business or if a spouse has been squirreling money away by keeping it in a PayPal account. Likewise, everyone talks of cryptocurrency but you need to track down the information to find the investment or be able to show the discrepancies between disclosed assets and lifestyle.
Whilst some digital assets, like photos or the dog’s Instagram account, may only have sentimental value they still are important to you so need to be sorted out fairly but without racking up massive legal bills. It is a question of knowing when a forensic digital expert is needed to help track down digital assets and when pragmatism and common sense is the best option to sort out sentimental digital belongings.
When dealing with digital assets in divorce proceedings it is important to consider:
Drawing up a digital inventory – what you know that you or your spouse holds as digital assets
What you suspect and why you suspect it – was the talk of bitcoin hot air or is there a basis to trace assets or gather evidence of their existence
Are the digital assets capable of being shared and if not, who will keep them
The fairness of one spouse keeping the digital assets and the other keeping non-digital assets. That consideration may be relevant where there is a large online share dealing account subject to stock market fluctuations but an equally uncertain property market if the other spouse is keeping the family home
For expert Divorce and Financial Settlement advice call our team of specialist divorce lawyers or complete our online enquiry form.
Do you suspect your ex is hiding assets from you in your divorce proceedings? If your ex is hiding assets there is a real risk you won't achieve a fair financial settlement. If you suspect your ex is hiding assets there is also a strong possibility that you won't be able to reach an agreed financial settlement because of your suspicions. That’s why if you think your ex is hiding assets in divorce proceedings it is best to get expert family law advice on your options.
For expert Divorce and Financial Settlement advice call our team of specialist divorce lawyers or complete our online enquiry form.
Is my ex hiding assets in divorce proceedings?
Divorce solicitors will tell you that a husband and wife are under a duty to provide full and frank financial disclosure of their assets when negotiating a financial settlement. That’s the case whether you are negotiating through:
Financial Court proceedings
If things are amicable, or your finances are straight forward, you may not want to see reams of paperwork going back years but every family situation is different. You probably know if your ex has hidden stuff from you throughout your marriage or you may suspect that they started to do so when they met someone else or when the marriage got into difficulties and the relationship started to drift apart.
If your ex is very keen to reach a financial settlement without providing any paperwork and wants to get an agreed clean break Financial Court Order as soon as possible this may raise a red flag for you or your divorce solicitor as you need some minimum paperwork to check things out.
If you feel that you are being pressurised into accepting no or very limited financial disclosure documents, and into accepting your ex’s word for everything, talk to a financial settlement solicitor before agreeing to a division of assets. That’s because whilst your ex might be totally honest and just wanting to ‘cut to the chase’ and get an agreement, you are entitled to see supporting paperwork. It’s important to do so as any financial settlement you reach by agreement can't easily and quickly be unravelled if it turns out that you were right to have your suspicions about your ex hiding assets from you.
Why is my ex hiding assets?
There are many reasons why an ex may try to hide assets. Divorce solicitors come across these common excuses:
It is inherited money
It is savings from my income
The new house is owned by my new partner so it isn’t really my asset even though the deposit came from me
There is no need to get a business or pension or other asset valued as you can take my word for the value
Money was owed to a family member and was not transferred to them to hide assets
Cash that was put into additional bank accounts was forgotten
Property owned abroad or owned before marriage doesn’t count towards the financial settlement so wasn’t disclosed as it isn’t relevant ( in the ex’s opinion)
These are all excuses and should not be used as a reason to not provide full and frank financial disclosure. Sometimes an ex will try to hide money that might not be relevant to the financial settlement but you will both spend time and money arguing over the financial disclosure. However, if the asset had been disclosed at the outset your financial settlement solicitor could have advised you about its overall relevance to the financial settlement.
For example, a pension accrued before a short marriage with a cash equivalent transfer value of £10,000 may not be of significance and your ex is wasting their time and money by trying to hide an asset that may be of limited relevance because of the duration of your marriage or your ages. However, by failing to disclose the pension, you and the Court may be far more sceptical about how honest their other financial disclosure is, such as, the extent of your ex’s declared self-employed income or the reason they have transferred money to a sibling or new partner.
What can you do about an ex hiding assets?
If you are separated or getting divorced and you believe your ex is hiding assets you may need urgent financial settlement and injunction representation. That’s because if your ex is hiding assets with the intention of reducing your financial settlement you may need an injunction order to stop them. Examples of when you may require a financial injunction include:
Your ex is transferring money or property to a third party
Your ex is putting their pension in payment and taking the maximum tax free cash sum to put the money out of your reach
Your ex is syphoning money out of the family business by paying a family member for false invoices with a view to making sure the family business has a lower value placed on it as profits will be down
Your ex is buying property overseas or transferring assets abroad
Your ex is moving money out of joint bank accounts and putting it into cryptocurrency
An injunction is a temporary measure to stop your ex from hiding or disposing of assets. It is best to consider a section 37 injunction application rather than assume that in financial settlement Court proceedings a new partner, parent or sibling can be joined into the financial application to try to unravel the transfer of assets. Whilst that is possible it is normally best to stop the transfer taking place in the first place by securing a freezing injunction.
If you have not already done so, a divorce solicitor will also advise you to start financial Court proceedings for a Financial Court Order. Within the financial settlement application, the Court can make financial disclosure orders that your ex will need to comply with.
If your ex does not comply with the financial disclosure orders then you can ask the Court to enforce the disclosure orders against your ex or ask the Court to draw inferences. For example, if the Court ordered disclosure of historical bank statements to reveal what happened to the £100,000 after the sale of a buy to let property and your ex flouts the disclosure order you can ask the Court to draw inferences as to why and ask the Court to add back in the £100,000 so you get a greater share of the other family assets.
Financial proceedings and ex hiding assets
If you have started financial proceedings and you are not satisfied with your ex’s Form E financial disclosure then a specialist family solicitor can review the financial disclosure with you and draw up a list of additional questions and request for extra non-standard paperwork . For example, if your ex is the director and shareholder in a family business and you suspect they have been syphoning money off to their new partner by creative accounting or use of the director loan account, you can ask for a forensic accountant to value the business and look at your accounting concerns as well as asking for an order that your ex disclose statements for their DLA.
Alternatively, you can ask the Court to make financial disclosure orders to help you investigate if:
Your ex is self-employed and the family lifestyle does not match their declared earnings
Your ex has withdrawn significant sums from a business or personal account and that is not their usual pattern of spending
Your ex previously mentioned an asset that they said would be a rainy day asset or pension but there is no mention of the asset in their financial disclosure
There are lots of ways a tenacious divorce solicitor can ‘get to the bottom’ of financial disclosure, with the assistance of your background information and knowledge of your ex, combined with seeking the right injunction, financial disclosure orders and valuations.
For expert Divorce and Financial Settlement advice call our team of specialist divorce lawyers or complete our online enquiry form
The Impact of Domestic Violence On A Divorce Financial Award
In this blog divorce financial settlement solicitor, Robin Charrot, looks at a recent court case involving divorce financial settlement claims and allegations of domestic violence to see how divorce settlements work and how the court treat domestic abuse allegations when making financial settlement decisions.
The financial settlement
A wife, age 55, separated from her husband. They could not reach a financial settlement by agreement and financial court proceedings were started. Sadly, the scenario of a husband and wife splitting up and going to court to get a financial court order isn’t unusual but what marks this case out is that the wife was a barrister and had a property portfolio in her name, acquired through her earnings during the eleven-year marriage. The husband, age 58, wasn’t working and had not worked independently of the wife throughout the marriage. Again, there isn’t anything unusual about this save for the situation not complying with the unusual gender stereotype. However, the wife said that as well as her being the bread winner in the marriage, the husband had been violent to her on two separate occasions. The wife said that meant the husband should get nothing by way of financial award. The husband argued that wasn’t fair.
The domestic violence allegation
The financial court looked at the domestic violence allegations. The husband had been prosecuted but was acquitted so had no criminal conviction for domestic abuse. None the less the family court said it could take the allegations of domestic violence into account because the family court had made findings about the domestic abuse.
A husband or wife should therefore not assume that just because a spouse did not report domestic abuse to the police that the family court will disregard domestic violence. However, the court also made it clear that just because there has been domestic violence in a relationship that does not mean that the perpetrator of the domestic abuse should end up with nothing.
The financial court proceedings
The family court ordered the wife to pay the husband £625,000 as a financial court order but the wife disagreed and appealed. She thought the ruling was unfair. The second judge said that £200,000 of the £625,000 award should be a charge to the wife, repayable by the husband’s estate on his death or repayable by the husband to the wife if the husband were to remarry or live with a new partner. The wife asked the court to reduce the lump sum payment to £425,000. On appeal, the court kept the payment at £625,000 and cancelled the charge. This means the wife has to pay the full £625,000. The court calculated that £625,000 was necessary to enable the husband to buy a new house with a budget of £400,000, with £25,000 to buy a car and pay living expenses and £200,000 to cover costs.
The appeal judges concluded that the domestic violence findings did not mean there should be no financial award or a charge back of some of the financial settlement. The appeal judges favoured a clean break financial settlement with no ongoing financial ties between husband and wife.
The costs of not agreeing a financial settlement
When determining the appeal, the judge said the family financial proceedings had become ‘an exercise in self-destruction' because the legal costs had become disproportionate to the family assets so it was hard to achieve a financial settlement that either husband or wife thought was fair.
As the appeal court concluded that the findings of domestic abuse made against the husband do not justify making what would otherwise be an inappropriate order the £200,000 charge was removed giving him a lump sum of £625,000.
The lessons from the court case
The lessons from the court case are that arguing over principles doesn’t always pay as whilst the wife was the breadwinner the husband was nonetheless entitled to a financial award to meet his needs. Those needs were not extinguished by the finding of domestic violence in the relationship by the family court although it is fair to say that the award is smaller than if no domestic violence allegations had been made. It is therefore important to raise allegations of domestic violence but not to expect that the court will make no award or an award that is lower than an amount that meets the perpetrators basic needs if the other party has his or her needs met.
In this case the wife was not only a barrister, she specialised in family law. What that tells us is that it is important to get independent and impartial expert family law legal advice as early as possible. Whilst you may not like the legal advice it may save you a lot in legal costs if that legal advice enables you to reach a pragmatic financial settlement.
Evolve Family Law are North West and Online Family and Divorce Solicitors
For legal help and advice on divorce and family law call us or complete our online enquiry form.
Did you know that almost forty percent of people questioned admit to keeping money secrets from their partner? That information comes from a survey conducted by the Money & Pensions Service. In this blog we look at keeping money secrets during a separation or divorce.
What the Money & Pensions Service Survey Reveals About Us
The Money and Pensions Service survey questioned 5,200 people across the country about their financial habits and personal finances. The key findings are:
Those in the age range 25-34 are the most secretive age group, with three in five not revealing financial details to loved ones
Whilst nearly twenty five percent of those surveyed thought their husband, wife or partner was hiding financial things the reality is that nearly half said that they had hidden things themselves
It is most common to hide credit cards and credit card debt – nearly forty percent of those replying to the survey had done so
Undisclosed loans are the second most popular thing to hide from family with just over twenty per cent of those surveyed doing so
Around twenty percent of those responding to the survey had a secret savings account.
As the Money and Pensions Service acknowledged there are many reasons why someone might hide money or not reveal their financial situation whilst in a relationship, such as:
Wanting to build up a safety net of savings that their partner won't spend. That way there is a rainy day savings fund in case of redundancy or a large unforeseen bill, such as replacing the boiler
Feeling the need to save money so that there is an escape route from an abusive relationship where the partner secreting the money is afraid that without hidden money if it will be impossible to leave their controlling partner
Hiding credit card debt or loans because you know that your partner will worry about the debts
Feelings of embarrassment of having incurred debt, sometimes the debt was incurred before the new relationship and it now feels ‘too late’ to mention it.
The Money and Pensions Service encourages people to talk about their finances as, by doing so, it can make money worries more manageable, especially when you are concerned about other matters such as redundancy or the impact of Covid-19 on the prospects of your getting a 2020 bonus from your employer.
Financial secrets and separation and divorce
As Manchester divorce solicitors we have to ask about financial matters so we can give the best advice on financial settlement options. Sometimes people are reluctant to mention undisclosed credit card debts or loans as their husband or wife doesn’t know about them. However, it is important that you do so as those debts may affect your ability to take over the mortgage on the family home or to secure another mortgage to buy a new property.
In cases where there is debt then in financial settlement court proceedings the court rarely wants to undertake a forensic exercise into how the debt was incurred and whether, for example, you should have bought the shoes or motorbike but instead will ask:
Is the debt family debt – in other words whilst the debt was hidden from a husband or wife was the loan or credit card money used for the benefit of the family. For example, a credit card was used to clothe the family or to pay for family holidays or a family car
What impact does the debt have? The court will want to know if the debt will stop a husband or wife from being able to buy another house or stay in the family home or meet their other needs.
In addition to debt and divorce, when it comes to financial disclosure on separation or divorce there is an obligation to provide what is referred to as full and frank financial disclosure of all your assets. That includes secret bank accounts that your husband or wife doesn’t know anything about or money given to a family member to ‘hold’ for you or cash that you keep.
Failure to provide full and frank financial disclosure may mean you are less likely to reach a financial settlement by agreement as your husband or wife probably won't believe your financial disclosure or a court drawing inferences or making findings against you in a financial settlement court hearing. For example, if your family business generates cash but according to your accounts you receive an income that amounts to less than your essential outgoings (mortgage payments, utility bills or other known expenditure) then the court could make inferences or findings against you.
Therefore, whilst there may be many reasons why you would want to keep things secret during a relationship, when it comes to a separation or divorce there is a court imposed obligation to be both ‘full and frank’ in your financial disclosure.
We are Manchester and Cheshire Divorce and Financial Settlement Solicitors
Evolve Family Law specialises in family law and divorce and financial settlements. If you have questions and need advice on your divorce and financial settlement options call Evolve Family Lawor complete our online enquiry form. We offer face to face appointments, remote meetings by appointment by video call or telephone.
Whilst the world is still in the grips of a global pandemic and with the financial aftermath of coronavirus only now starting to be fully appreciated it is a challenging time to reach a financial settlement. In this blog we look at valuing assets in divorce proceedings and the impact of coronavirus on reaching a financial settlement.
Assets in divorce proceedings
Prior to looking at the topic of valuing assets, most divorce solicitors are first of all keen to ensure that all the assets that a husband or wife own in their sole name or jointly with their spouse or a third party are listed and disclosed. Supporting paperwork must be provided.
If a husband or wife starts financial settlement court proceedings the court will order them both to complete a document referred to as a ‘’Form E’’. If you are trying to negotiate a financial settlement, without starting financial court proceedings, it can still be useful to complete a Form E. Alternatively your divorce solicitor may prepare an asset schedule and provide that to your husband or wife's solicitor together with all the relevant documents relating to the assets in the schedule.
Divorce solicitors say that however you provide information about your assets it is essential that you provide full and frank financial disclosure. If you don’t then the likelihood is that any financial settlement negotiations will break down. If your husband or wife finds out about an undisclosed asset after a financial court order has been made your ex-spouse could apply to set aside the court order. They could ask the court to order that you pay their costs and ask that your non-disclosure is reflected in the size of any new financial court award.
Valuing assets in divorce proceedings
In such turbulent financial times you may question how you can value assets given the uncertainty about the housing market and recent falls in the stock market with experts questioning whether listed stock has further to fall. Equally, if you own a family business, for example, a hairdressers or restaurant, you may question what value your business has at this moment in time.
Divorce solicitors say that when it comes to valuing assets if a couple can't agree on what an asset is worth then they should ideally joint instruct an expert in the relevant field to carry out a valuation, such as:
A surveyor for property such as the family home or a buy to let portfolio or commercial property owned as part of a family business or held within a pension structure
An accountant to value non-listed shares or the value of a family business
A pension actuary to value a pension.
All valuers, whether they are a surveyor or an actuary, will tell you that valuing an asset is more of an art than a science and that valuations can fluctuate.
In the current pandemic with worries about job security and the impact of that on your mortgage capacity it can make negotiating a financial settlement a worrying time.
Whilst there are clearly many uncertainties and challenges ahead of us a specialist divorce solicitor will be able to guide you on:
The timing of obtaining valuations of assets and if historical valuations should be updated
The importance of taking financial advice and checking things such as mortgage capacity, size of deposit needed for a house purchase or any revised pension projections for a private pension scheme
Whether it is best to share risk by dividing each type of asset rather than, for example, one of you keeping all the cash savings and the other getting the equity in the family home or one of you getting the family business and the other keeping the pension and the family home
Whether you should agree to a clean break financial court order as that type of court order prevents future financial claims for spousal maintenance by a spouse including if, for example, you can't get a job or you lose your job
If you should agree to capitalise any future spousal maintenance payments by giving your spouse a cash sum instead of ongoing monthly spousal maintenance payments.
Whether you are at the start of your separation or contemplating starting financial proceedings the important thing is to take expert legal advice from a divorce solicitor who has the experience to guide you on how best to achieve a fair and reasonable settlement. That way you can move on with your life, notwithstanding the changes brought about by Covid-19.
Online Divorce and Financial Settlement Solicitors
Cheshire and Manchester based Evolve Family Law solicitors offer face to face and online appointments to negotiate financial settlements and provide representation in divorce and financial proceedings. If you need advice on any aspect of family law call us or complete our online enquiry form to set up a meeting, video conference or telephone appointment.
If you have taken the decision to separate from a husband or wife, it is tempting to leave sorting out financial and property matters and things can drift. Alternatively, a husband or wife can rush into an agreement, often without first getting accurate or up to date valuations of property and other assets.
Which Property Should be Valued in Your Divorce?
It is assumed by a separating couple that only the family home needs to be valued as part of their separation or divorce. That is not necessarily correct, as it is important that all relevant property is valued.
What then is ‘’relevant property ’’ that should be valued? The honest answer from a Whitefield divorce solicitor is that it all depends on the individual personal and financial circumstances of a husband and wife. However, property can be relevant even if it is owned in the sole name of a husband or wife. Property does not have to be owned jointly to be relevant to divorce proceedings and form part of the family wealth and financial settlement options.
If a husband and wife are splitting up then consider valuing:
The family home ; and
Any second home or holiday home or chalet (including overseas property ) ; and
Buy to let property portfolio; and
Any property owned by a family business. This is because if the property is included in the company business accounts the company shares cannot be accurately valued unless there is an up to date valuation of the property ; and
Any property held within a pension fund, such as a SIPP. This is because the value of the pension fund cannot be accurately ascertained without an up to date value of the property held in the pension fund ; and
Property owned by a third party, for example a family member, if a husband or wife has a beneficial interest in the property.
An expert divorce solicitor will look at the financial disclosure and advise you on what property should be valued and talk to you about the best way to obtain accurate valuations. The solicitor’s advice may depend on a range of factors, for example, the length of the marriage or when a property was last valued. Sometimes an independent surveyor may have recently valued business or pension property for business related or pension administration purposes. That can mean that a further report is not necessary but careful thought should be given to the purpose of the original valuation and the reliance that can be placed upon it.
Valuing Property in Financial Court Proceedings
The first step in reaching a financial settlement is to find out what the family home and other property and assets are worth. If property and assets are not accurately valued then the financial settlement can result in unfairness to either the husband or wife.
If a couple cannot agree on the value of a property value, a court can order a formal valuation by a surveyor who is a member of the Royal Institute of Chartered Surveyors.
Normally a family judge will say that one surveyor, jointly instructed by the husband and wife, should undertake a valuation of property for use in financial court proceedings. The main advantage of using one single joint expert is there are no conflicting opinions on a property value by different surveyors and costs do not escalate by surveyors going to court hearings to justify their different property valuations.
A single joint expert is:
Independent of both husband and wife ;
Will not of had undisclosed prior dealings with either the husband , wife or the property ; and
Not influenced by whether the property is owned jointly or by the husband or wife or jointly with a third party. This is because the expert is focussed on the value of the property and not its ownership; and
Under professional and court rules on reporting duties to ensure that the report is independent and impartial.
Specialist Whitefield divorce solicitors also recommend that you take advice on the tax implications of the sale or transfer of property so that the tax bill can be factored into the financial settlement to achieve a fair net result.
A divorcing couple can worry about the cost of getting legal advice, property valuations and tax advice. However, given the importance of knowing how much property and assets are worth before looking at the wide range of property solutions, it is always sensible to get expert advice before deciding what to do. The cost of this advice and preparing any legal documentation is tiny compared to the cost and stress involved if something goes wrong without the right valuations and documentation in place.
For legal assistance with divorce financial settlements and representation in financial court proceedings please contact our expert divorce lawyers today
We all know that it goes on; the press is always full of stories about international or multi-millionaire families involved in divorce and financial settlement cases where there are accusations that a husband or wife has hidden assets.
It is not surprising that there are allegations of hidden assets in divorce proceedings when, after all, divorce proceedings are often started because of a lack of trust in a relationship. The fact that a spouse has had an affair can make a husband or wife to lose emotional and financial faith in a spouse. When a separation is imminent or divorce proceedings are started, past actions and financial behaviours can take on a new significance.
You do not need to have the assets of a multimillionaire to worry about a spouse hiding assets in divorce and financial proceedings. The hiding of money or property in divorce and financial cases of more modest means is just as worrying and may even have a more profound effect on the financial settlement.
Examples of hiding assets in divorce
The best Cheshire divorce solicitors will tell you that there are numerous ways in which assets can be hidden during a divorce, and there are warning signs, including:
A spouse being secretive about money and not telling you about how many bank and savings accounts they hold;
If a spouse is self-employed or is in business and starts to use cash in all transactions whilst telling you that the business is doing badly;
If a spouse has boasted of their ability to hide things from you or has previously told you that he or she hid assets from their former spouse during earlier divorce and financial proceedings ;
You think that your spouse has transferred money or property to a relative to hide the assets from the divorce and financial proceedings.
Hiding assets – the cost of recovery
There are many different and clever ways that a determined and devious spouse can hide money and property in divorce and financial settlement proceedings. However, most Cheshire divorce solicitors are equally determined to trace hidden assets to ensure that everything is ‘’in the pot’’ and can be taken into account in the divorce financial settlement.
When a divorce solicitor is looking for hidden assets, they need to:
Work as a team with their client – after all a spouse knows her husband or wife best and will potentially have lots of invaluable information , even if they do not always appreciate just how important their information is to the solicitor;
Look at the cost benefit ratio- there is no point in running up a big solicitor’s bill or instructing a forensic accountant to pour over company accounts unless the extra work and costs is likely to produce more by way of financial settlement than the extra costs incurred. That is because you cannot guarantee that a court will order a spouse to pay your costs in tracing assets. It is a pointless victory if the bigger financial settlement is swallowed up by extra legal costs.
Look at the bigger picture and use their expertise to assess a case before embarking on tracing hidden assets. For example if a husband and wife have been married for twelve months the likely size of the financial settlement , based on the length of the marriage, may not be effected by whether the solicitor can discover hidden assets. That is because the short length of the marriage may be of overwhelming importance to the size of financial settlement, rather than the extent of the family assets.
Financial disclosure and hiding assets
In financial court proceedings, a husband and wife are obliged to provide ’’full and frank’’ financial disclosure to their spouse. That does not always happen. Additional enquiries, such as questionnaires and single joint expert and shadow expert reports can be commissioned to trace assets. Sometimes a solicitor can spot that a spouse is trying to hide money, property or income through:
Transferring money out of a bank account as cash and saying that the cash has been spent but really opening a secret bank account with the cash;
Producing incomplete internet transaction histories for bank accounts to try to avoid revealing entries;
Saying that money taken out of a savings account was to repay family debt but the debt was artificial, with the plan being for the ‘’debt’’ to be repaid after the financial proceedings are finalised;
Pretending that they do not own a new property. A simple search of the Land Registry can reveal the truth about property ownership;
Not disclosing the existence of family trusts or inheritances.
These are just the tip of the iceberg when it comes to hiding assets in divorce proceedings.
The best thing that you can do if you suspect that your spouse is hiding or has hidden assets is to take legal advice from a specialist and experienced Cheshire divorce solicitor such as Evolve Family Law. We will be able to help you weigh up the pros, cons, and costs of tracing the hidden assets.
For information about financial settlement options or for representation in financial court proceedings please contact our expert divorce lawyers.
Divorce and debt sounds a depressing topic. However, it is a subject that has to be discussed by many couples who are thinking about separating or getting divorced.
Putting off a separation or divorce because you are in debt is rarely a good idea unless you think that the marriage still has a chance of working. If you think your judgment is impaired by the debt, it is sensible to take advice on your options.
Debt and divorce proceedings
Many Whitefield divorce solicitors find that debt is one of the major reasons behind the decision to start divorce proceedings. For example:
A spouse may have hidden spending from their partner so they have lost trust in them;
Family debt has arisen and because of financial pressures, arguments have escalated.
Debt issues can be included in a divorce petition based on a spouse’s unreasonable behaviour. There is often a reluctance to agree to a divorce if allegations are made about debt and spending.
When a couple agree that a marriage is at an end the simplest solution is for the respondent to the divorce proceedings to agree to the divorce and to say that they do not accept the debt allegations in the divorce petition. That way the husband and wife avoid the cost of contested divorce proceedings. However, the respondent to the divorce petition can argue his or her case in any later financial court proceedings.
Debt and financial disclosure
If you are negotiating a financial settlement or asking the court to make a financial court order, it is vital that all debt is disclosed. In financial court proceedings, financial disclosure involves giving information about assets and debts.
Debt can include joint debt and individual borrowings. Debt is not just overdrafts and loans but includes credit and store cards, gambling debts, money owed to family or car loans and hire purchase commitments.
As well as providing details of the debt, it is important to disclose how much is repayable each month and the debt repayment date. Without that additional information, financial settlement options cannot be explored.
Am I liable for the debt in my spouse’s name?
If your spouse took out loans or debt in his or her name then the person or organization owed the money cannot pursue you for recovery of the debt unless it is legally assigned to you.
However, in family court proceedings the judge can take into account debt in one spouse’s sole name. The court may have to decide if the debt is ‘’family debt’’ or ‘’non-family debt’’. For example, if a wife took out a credit card to pay for family holidays and clothes for the children the court is likely to class the loan as family debt even if the husband did not agree with all the spending. However, if a loan was used to buy presents for a new partner or furniture for a new house it is likely that it would be viewed as non-family debt.
What happens to non-family debt in divorce and financial court proceedings?
If you can establish that a spouse has incurred debt purely for their benefit then a divorce solicitor can argue that the debt should be ‘’added back’’ to the assets of the person who incurred the debt.
Normally the divorce court will only add back non-family debt to the family asset pot if the expenditure was wanton and reckless.
Non-family debt can be a highly emotive topic. However, it is always important to weigh up the extra legal costs involved in analysing the debt and the benefits to be gained from pursuing the legal argument.
Your divorce solicitor should help you stand back from the situation to work out if it is in your financial interests to pursue the argument. It will all depend on the amount involved, how ‘’reckless ‘’ the expenditure was and the potential additional legal costs.
For help with divorce proceedings or financial settlement solutions and financial court orders please contact our divorce lawyers today.