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Divorce and Finances FAQ


What is a clean break?

A clean break is a type of settlement where all finances are finalised at the point an agreement is implemented. It usually involves a split of assets between the parties with no ongoing spousal maintenance.

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A clean break is also achievable in cases where spousal maintenance would normally be payable. If enough assets exist to enable the party liable to pay maintenance to transfer assets of a suitable amount, then this can negate the payment of maintenance on a capitalised basis.

Once a clean break has been accepted by the court then neither party can try to claim additional assets or maintenance at a later date, no matter what their change of circumstances.

A clean break applies only to your spouse. It is not possible to get a financial clean break in respect of your children as you have an ongoing financial responsibility to support them.

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Will the family home have to be sold?

This will depend on your financial circumstances. The courts will always seek a fair financial settlement, which can often mean an equal division of assets.

If you wish to retain the family home this may be possible if enough other assets exist to satisfy your ex-spouse’s financial entitlement, you can effectively pay them off and keep the house.

If other assets are not sufficient then you may need to sell the property and share the proceeds so that you can both start again with separate properties.

In cases involving children, things become more complicated as their welfare is judged to be of the highest importance. If it is possible for the children to stay in the family home with one parent, this is preferable as it would cause less disruption to their lives. However, the courts will not allow an unfair settlement so this type of arrangement will depend on many other factors, such as the other parent’s income and ability to afford a second property for him/her to live in. Sometimes the family home is transferred to the primary carer of the children but with a charge registered against the property in favour of the other parent which can be realised at an agreed future date. We call this a ‘deferred charge’.

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Can I get spousal maintenance?

The entitlement to payment of spousal maintenance depends on many factors including:

  • The length of the marriage
  • The standard of living before the divorce
  • Your respective needs and the needs of any dependent children
  • Your respective incomes from all available sources
  • Your respective future earnings capability
  • The contribution made to the marriage, either financial or by caring for children and looking after the family home

As an example, if a couple have been married for 20 years and by agreement the wife gave up a well paid job to bring up the family at home, while the husband became the sole bread winner, then the wife’s future earnings capability may be severely compromised. In these circumstances the wife should not be penalised for her lack of earnings ability. The courts see the role of the homemaker as no less important than that of the bread winner. A fair settlement may include the wife receiving half of the joint assets including the husband’s pension entitlement, as well as ongoing spousal maintenance.

On the other hand, if a young couple with no children have been married for a short time and both are working, then it may be fair for them both to leave the marriage with no ongoing financial ties and taking with them what they brought into the marriage.

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I have a business; will it be included in the financial settlement?

Business assets will be judged to be assets of the marriage for the purposes of a divorce settlement. Even if one party has built up the business with no involvement from their spouse, the courts will still take the business into account.

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The business may still be able to be protected if enough assets are available to achieve a fair split. As an example, one party may hold on to the business by giving up their entitlement to their share in other assets, such as the family home. This is called ‘off-setting’.

If the business is generating enough income it may also be possible to pay out the other spouse over a period of time with income from the business.

The courts are generally reluctant to interfere with a business where it is the income producing asset of one party, but if it is ‘capital heavy’ with no means of ‘off-setting’, then the business may have to be sold if an alternate arrangement cannot be found to satisfy both parties.

There are many different ways of achieving a settlement which is fair to both sides and an experienced solicitor will negotiate on your behalf to achieve the best possible outcome for you.

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How are pensions treated on divorce?

Pensions are treated as an asset of the marriage. This may be of particular relevance in a long marriage where one party has worked and built up a substantial pension pot, while the other has been the homemaker and brought up the children, losing out on a private pension entitlement.

In circumstances such as these, the party without a pension may have a claim over the other’s future pension entitlement. This may be realised in a number of ways. The entitlement could be satisfied during the financial settlement negotiations by the payment of a lump sum or by transfer of other assets. For example the party with the pension may give up some of their share of the family home to counter balance the pension benefits. In cases where sufficient other assets don’t exist, then an order can be made for the pension to be shared. This involves funds from the existing pension pot being taken out and put into a pension in the name of the other spouse.

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Who will pay the legal fees?

Normally both parties to a divorce will have their own solicitor and each will be responsible for paying their resulting fees.

In some cases it can be negotiated as part of the financial settlement that one person will pay some or all of the other’s legal fees.

The court rarely imposes costs orders/sanctions in family proceedings. It will only do so where it considers a party to be conducting themselves unreasonably.

We offer divorce on either a fixed fee or hourly rate basis and we will help you to decide on the right payment method at your free initial consultation.

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Will I have to pay child maintenance?

All parents have a responsibility to provide financial support to their children, regardless of whether or not the children live with them or have contact with them.

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Child maintenance is the payment of a regular sum of money to support the child’s living costs and is payable by the non-resident parent to the parent with whom the children generally live. (In cases of shared care the arrangements may differ.)

Child maintenance can be arranged by agreement between both parents or through the Child Support Agency (CSA) using a set formula.

The amount agreed will take into account any time the child spends with the non resident parent. For example if they stay overnight once a week then the amount of maintenance can be reduced by 1/7th to reflect this.

The courts only have limited powers to deal with child maintenance issues and instead usually defer to the CSA. Broadly speaking, the exceptions are endorsing child maintenance agreements within the context of divorce proceedings, dealing with maintenance for step-children, parents who live abroad, ‘top-up’ orders, eg. payment of private school fees or medical expenses for a child with special needs, or maintenance for a child aged 19 plus who remains in full time education.

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Contact us to speak to one of our Divorce and Family solicitors.

See our Financial settlements on divorce page.

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Our team of family solicitors comprises Resolution Accredited Specialists, Collaboratively trained lawyers and members of the Law Society's Children Panel.

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