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Negotiating the division of money and property

Many people going through divorce say deciding how to allocate financial assets, such as property, pensions, and savings, and issues related to child and spousal maintenance is the most stressful part of splitting up.

Except for child maintenance, there is no set formula to work out the division of money and property. The objective is simply to stretch joint assets to cover both parties' needs in a way that is reasonable and fair.

Parties can agree how to divide assets themselves. But, if that is not possible, they can ask the court to make a decision for them, which is called applying for ancillary relief.

First steps

Before negotiations begin, it's a good idea to sit down and make a list of all joint assets and financial issues affecting you - including property, money, where the children will live, your respective earning potential, pensions, mortgage repayments and other debts. Then, try to identify where there are areas of common ground between you and your ex, and also areas where you disagree.

Negotiating the division of property and money in a calm and reasonable way will save you substantial amounts in solicitor's fees. And it is of course in both of your interests to keep the relationship between you as amicable as possible, particularly if you share children.

Looking down the road, there may be many instances where you will need to work together and seek each other's co-operation. This may be for relatively minor things like organising your child's birthday party or a family holiday, but it could also be for major decisions like where to send your child to school.

Collaborative law

Normally, when a marriage ends, the spouses appoint solicitors who conduct negotiations on behalf of the parties at arm's length, either by letter or telephone. The divorce process can drag on for a long time and, in many cases, causes needless delay, frustration, and acrimony.

Many cases end up in court - which, as everyone knows, is not cheap. In 2008, for example, Paul McCartney and Heather Mills were rumoured to have spent a combined £4 million on legal fees. In challenging economic times, many people simply cannot afford to go to court, and the collaborative law process has gained increasing popularity.

The fundamental objectives of collaborative law are to resolve disputes without going to court and to promote fair and conciliatory settlements. To start the process, the parties sign a contract not to go to court, to put the children first (if they have any), to treat each other with respect, to adopt a problem-solving stance and to put the interests of the family as a whole before their own individual interests.

Each spouse still appoints a solicitor, but instead of negotiating through others or at a distance, the spouses meet to work things out face-to-face. The solicitors remain by their sides throughout, however, and therefore both spouses benefit from legal advice.

Other advantages of the collaborative law process include:

  • It's designed to be non-aggressive, so the parties retain their dignity;
  • It helps parties maintain amicable contact, not only with each other, but with shared friends, each other's families and children, etc;
  • It gives the parties more control over events, while also providing the protection of expert advice;
  • It means the parties can avoid passing the case to a judge to arbitrarily decide important matters;
  • It's generally cheaper than going to court and pursuing a traditional divorce;
  • It is more likely that a final agreement is reached amicably and that both parties can live with the agreement without looking back in anger in the years ahead;
  • Because of the non-adversarial nature of the process, neither party becomes embittered or spiteful.

Mediation

Mediation may also be a good option. This process allows you to discuss issues in a safe and neutral environment, giving you an opportunity to improve your communication and chances of long-term co-operation with your spouse - often necessary when you have children.

An impartial and independent third party with specialist training, who often has a background in law and counselling, helps you to identify common ground. If you do not want to negotiate in person, the mediator can even act as go-between.

Everything that occurs during mediation remains confidential and cannot be used in a later court hearing. You and your ex, not the mediator (nor a judge), decide the outcome. Yes, the mediator directs sessions - but you and your ex ultimately retain control over the decisions made - so it's an entirely voluntary process.

Mediation can be used at any time - whether you're still living together, living separately or divorced. It is not directly an aid to reconciliation, however, and mediators do not provide counselling (even though they are often trained as counsellors) - its purpose is not to bring the parties back together, but to bring them to the negotiating table.

Unlike the collaborative legal process, you do not sign a binding contract promising to resolve issues out of court, and you do not receive personalised legal advice (although you are free to consult your solicitors in between sessions).

One down side to mediation is that if one party acts unreasonably the process can ground to halt (since a mediator who goes the extra mile to resolve a dispute may be accused of bias). Another is that because it's non-binding the parties can expend a great deal of energy reaching a preliminary (verbal) agreement only for one to change their mind before putting pen to paper.

Consent orders

Assuming you reach an agreement at the end of negotiations with your ex, your solicitors will want to draft a consent order to present to the court. As its name suggests, a consent order is one that both parties agree to beforehand. After hammering out a deal on the division of money and property, you simply ask the court to issue an order reflecting the terms of the agreement. Provided the agreement is in both of your best interests (and your children, if you have any), the court will approve the order. Then, if your ex does not do as they have promised, you have the right to return to court for the order to be enforced.

Separation agreements

It may be that you are not yet ready to divorce, but want to separate and need to have a financial arrangement in place. In that situation, a separation agreement may be an appropriate way forward. Such an agreement does not have the finality of a consent order - which can only be made after a divorce petition has been filed and you have reached the Decree Nisi stage - however, it does settle things while you mull over next steps.

Legal advice

Before you begin negotiating, you should seek the advice of an experienced family law solicitor. A solicitor who routinely handles divorce matters may be able to offer suggestions and insights that you may not have thought of. After all, he or she is likely to have helped any number of other clients in similar circumstances. A solicitor will also help you understand your legal rights and obligations, and ensure any agreement you reach is a fair one. 

Summary

Dividing money and property takes time. Generally, the longer you have been together, the longer it takes to reach an agreement, particularly if children are involved. But by adopting a calm, problem-solving stance you can make the process a whole lot easier. You should also consult a solicitor since there is a danger of being too flexible during negotiations and agreeing to something you should not.

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