The Financial Aspects of a Divorce (Ancillary Relief)

Discussion in 'Finance, Property, Law' started by JudgeDredd, Jan 14, 2009.

Welcome to the Army Rumour Service, ARRSE

The UK's largest and busiest UNofficial military website.

The heart of the site is the forum area, including:

  1. [align=justify]I am often asked how the matrimonial assets are divided following the breakdown of a marriage. Clients often get disappointed when I tell then it is not a simple arithmetical formula and that there is no certainty of recieving an actaul sum but that we have to base the figures on sometimes no more than intelligent "gut feel" and experience.

    I thought I wouls write an article to explain why this is the case. I will post an article on the procedure soon.

    The following is based upon the assumption that the parties involved are married to one another, whether they are hetrosexual or same sex.

    There are three areas to consider:-

    1. Maintenance for any children.
    2. Maintenance (i.e periodical payments for husband or wife).
    3. Division of capital assets and property.

    1. MAINTENANCE FOR CHILDREN

    Provided the children are the children of both husband and wife and provided the husband, wife and children reside within the jurisdiction (i.e England and Wales) the question of child maintenance is dealt with by the Child Support Agency.

    The parties may enter into a voluntary agreement regarding child support and the Court may record this agreement in any subsequent Court Order dealing with other matters.

    However, the person who is entitled to Child support for a child in their care can never be prevented from applying to the Child Support Agency for an assessment.

    If the person so entitled is receiving state benefits ultimately the Child Support Agency are likely to become involved irrespective of whether the parties want such involvement.

    In simple terms the non resident parent will pay 15% of their NET income (ie after tax and national insurance etc) where they have one child, 20% where there are 2 children and 25% where there are 3 children. There is a direct reduction for the number of nights a child resides with the non resident parent.

    2. MAINTENANCE OF HUSBAND/WIFE

    Husbands and wives have a mutual duty to help support one another. Whether periodical payments ("maintenance") is actually made by one party to another will often depend upon the disparity in their respective incomes.

    However, Courts are now directed to create a clean break upon divorce whenever possible, so there is no continuing liability for maintenance either way if that is possible.

    In practice if on the figures one party has a maintenance entitlement the Court will only take it away if it is impossible to compensate that party by for example giving them a greater share of any capital assets.

    Often women harp on about their belief (from the information in the pub!) that the husband has to "keep them in the manner to which they were previously accustomed".

    In reality, the low income that all serving personnel recieve relatively speaking even in the higher commissioned ranks, means that this will virtually never be achieved.

    There is barely ever enough money to pay for basics, like a home for both parties let alone a lavish lifestyle for the now separated wife. In simple terms therefore, it is always a question of making ends meet not giving the wife a huge wedge of your income.

    3. ASSETS AND PROPERTY DIVISION

    When looking at the financial implications of a divorce how best to apportion assets the situation is never easy. It is not simply a question of putting all the details into a computer and pressing a button for an answer.

    Generally speaking the starting point will be an equal division between the husband and wife of their assets/property. This also includes pensions. However military pensions are a complicated animal and you should always take legal advice if you have been serving for several years to ensure that you dont give away too much of your pension.

    The Courts are, however, directed to take into account a whole list of things which after consideration may suggest that to be equitable one party should have rather more than half.

    The sort of things taken into account are as follows (known as the “Section 25 factors”):-

    a) The ages of the husband and wife;

    b) The length of the marriage;

    c) Whether there are children;

    d) The parties respective earning capacities;

    e) Whether any party or child has any disabilities;

    f) The parties pension policies;

    g) What contributions the parties have made in the past;

    h) What contributions the parties are likely to make in the future.

    In simple terms it is often a question or establishing what is available for distribution, who needs what and how best can these needs be satisfied, being as fair as possible to both parties.

    In reality however, taking a sterotypical family of 2 kids and a husband and wife, there is hardly ever enough money to keep the wife and kids in the matrimonial home (for the benefit of the kids not the wife) and then the husband paying the mortgage and say 20% of his income for the kids maintenance and get a property for himself too!!

    The outcome therefore is usually seeing what we as lawyers can do when we have very few assets to play with to try to meet everyone's needs and not their desires.[/align]

    Tell me if I am giving too much information, not enough information or if the posts are boring ....please
     
  2. Interesting...

    The impression one gets (from the usual sources on telly) is that the ex-wife strips the ex-husband, and keeps stripping until the reading of the will. Shurely it isn't so? If, for instance, the break is reasonably amicable and there aren't kids still at school, the savings, income and capital (excluding that brought to the union before marriage) of both the main and second income generators should be proportionately divided between the two parties?
     
  3. Judge D

    On a personal note, what is the outcome normally for the 'sharing' of a military pension and when is this payable to the spouse? Mine is being a right bitch an demanding £27,000 to be bought out of it after just 10.5 years together. Doesn't seem to be quite fair to me.

    What does the judge/court take into consideration when dealing with pension stripping?
     
  4. in simple terms (where there are no children involved or if they are all adult):

    the shorter the marriage the more likely you are to keep what you brought into the marriage on your way out of the marraige.

    the longer the marriage the more likely it will be shared equally (the judges use the word "equality" to be very accurate - which is different to equally) including any preacquired assets on your way out of the marriage.

    if it is amicable, you can agree anything you want (almost)
     
  5. one of my later articles was going to be on pensions in divorce so I will be brief here now (since i dont have time do write a full reply):

    in essence pensions can be offset, earmarked or shared. offsetting a pension means you are trading off the value of the pension against another asset, say the house. earmarking means that the original pension stays intact but when the pension holder retires, the other party gets a proportion of the monthly sum paid and possibly a proportion of the commuuted lump sum. Finally, a shared pension is where some of the value of the pension is physically lifted from the one partys pension and put into the other partys pension.

    I dont recall militray wills being capable of being shared, i would need to check that for you again. Getting old and all that!

    There are many further considerations to take into account, Pm me with more details and I will see how i can help further. You say you were together for 10.5 years but how long have you had the pension?
     
  6. Are you not entitled to any of her occupational pension for the duration of the same period? Seems a tad one sided.
     
  7. yes he would be - in exactly the same way
     
  8. Go for it Daytona! Fleece the bitch!
     
  9. Just a couple of quickies on savings and property. When I separated we split the savings as they were 50/50. In the event of divorce proceedings will this be taken into account or can the ex demand a further 50 percent of my current saving.
    I also heard somewhere that you can change the title deeds on the house if it is not sold so that if the wife retains the property due to the kids and location of school a future partner cannot gain financially should the house be sold. Is this correct?
    Many thanks
     
  10. Surely she is only claiming for some of your Army pension? Daytona, I know we haven't always seen eye to eye in the past, but personally, I agree with Bickies - fleece the bitch.

    I (or he) was lucky. Mr Dale and I have both got Army pensions, cars, houses so we just kept what we had and I got half of his savings account because I had done and paid for the shopping for the last gazillion years.

    I kept all the white goods and furniture because I had paid for it all (tsk - obviously). If I wanted to have been arrsey, I could have asked for half of his house because I ploughed a shite load of money into it before we got married (when we did get married, I paid for everything in the quarter) and personally didn't see the point in asking for the carpets to be ripped up and wanting the picture rails back, and exchanging them for half a bathroom.

    The only bone of contention was the smelly dog. I took that stinking bastard on after his dearly loved mum (the witch) decided she couldn't cope with him (the dog I mean). When it came to divorce time, it was "we want the dog back". Fine says I. I got custody rights - picked him up at weekends and took him to MacDonalds and the zoo, park etc (dogs are crap on the swings and slides), but once His Lordship got posted to Canada, she decided she couldn't cope with the dog again, and asked me to come and get him. He's been with me (or Toppers - the step-dad) ever since. Not a chance will he ever go back. That's my only victory over the whole thing.

    Anyhoo, I digress. Take her for everything. She might look and play sweet and innocent, but remember she is a woman. They (we) are snakes with tits, and what she says one day will change the next. I wouldn't even trust myself as far as I could throw me.

    Hope this helps!!!!
     
  11. The law on divorce finances is never straightforward unfortunately, thats why there is so much confusion with the public and every barrack room lawyer can show you a case of a friend where x happened but y happened to another friend.

    It would make sense, unless you won the lottrey or something like that for you to keep any additional saving you have accumulated since the separation and there is good case law that indicates (not proves) that you should keep your post separation acquired assets. So the answer should be no she cant get any of your new savings.

    As for the new partner being prevented from getting his mtts on her/your dosh in the house. Ultimately, if say your wife has 60% of the home and you have 40% but you only get your share when the kids grow up or where the house has been transferred to the wife who is then in a relationship, she can unfortunately do what she likes with her share, including giving him a share.

    As to whether he gets a share just by living there even for several years, that is quite unlikely (but it is possible if for example he pays substantially towards the development etc of the house he could get a share through the back door.)

    The last point is very complicated law despite it being a simple question. I hope I have calrifed it a bit.
     
  12. General Melchett

    General Melchett LE Moderator

    The Military pension.

    Great aint it. :) and just remember that when she is trying to get her greasy mitts on it this:

    When you were last under contact or in some stinking sh*thole of a country earning that pension who did you see to your left and right covering your arrse?

    Definately not her!
     
  13. Always bearing in mind that at the top of the list of the section 25 factors is the rider that the court must consider "all the circumstances of the case" and that the needs of the children while they remain minors will be the "first consideration of the court". That can knock you a long way off an equal division.
     
  14. Schweik

    You are completely right to point that out. Sorry for the ommission and glad you brought me to task on that.

    Oops.