Do you believe in divorce fairies?

I have been invited to guest on a brilliant podcast, Black Millennial Money, which we are recording this week. During the preparation, we began talking about some of the myths that surround divorce. Today, I am going to write about some that we discussed.

The Divorce Fairies

For me, this is the most important myth that needs to be dealt with. You may not have heard it called the Divorce Fairies but let’s talk about where it comes from.

You might have heard someone about to go through divorce say, “I’m going to take them for everything they’ve got” or “I’m going to have my day in court”. It may be that they are in the angry stage of grieving the marriage and need emotional support in the form of a counsellor, therapist, or divorce coach.

However, taking this stance has a number of issues. The main one being that the cost of court proceedings to finalise your divorce, particularly if you continue all the way to a final hearing where a judge will tell you what you can each have. The cost of this comes from the Marital Assets, which is the money that you and your spouse have accumulated and are discussing how to divide. There are no “divorce fairies” who will pay your court costs. Even if your spouse pays, it is still from the overall pot.

There are other options. There is mediation, collaborative law and arbitration, or even negotiating a settlement through your lawyers without the use of courts. In some cases, the courts are required, and there may be no other way, but consider carefully whether that should be the initial plan.

Getting Taken to the Cleaners

A few times recently I have heard and read about people saying that they have had to start from scratch post-divorce because their ex “took” everything. In my experience, I have not seen that happen. In fact, the starting point for the division of marital assets in England and Wales is half each. There are certainly many cases where this is not the final settlement, but I have yet to come across one where all assets are awarded to one person.

The big thing about sorting out your finances on divorce is to try to achieve a fair settlement. Whilst it is likely that neither of you will feel that the outcome is fair, and in those cases the outcome is probably right, the courts try to take into consideration the needs of both parties, their previous standard of living and the status quo in the marriage. For example, if one person gave up work to look after the house and bring up the children, they will need to be supported financially on divorce, at least for a short time, to ensure they can move towards becoming financially independent.

When you marry, you sign up to being a team, which means sharing what there is and ensuring that both parties are ok financially, whatever caused the end of the marriage.

You Don’t Get More Money for Being the “Innocent Party”

As things stand under the law in England and Wales at the moment, there are 5 “Facts”:

• Desertion
• 5 years separated
• 2 years separation where both agree
• Adultery
• Unreasonable behaviour

You choose the most suitable one for your circumstance as the grounds on which to file for divorce.

Where there has been adultery or unreasonable behaviour, or even that it was the decision of one person rather than both, many people believe that the financial settlement will be greater for the “innocent party”. This is not the case. The finances are dealt with separately to the divorce itself and the reasons for divorcing are not taken into consideration.

There are some occasions in which poor behaviour may have an impact on the financial settlement, but they tend to be behaviours occurring during the proceedings, rather than those that led to the divorce. For more information on this, you should speak to a family lawyer, who can advise you on the law for your individual circumstances.

Custody and Irreconcilable Differences

Under the law of England and Wales, neither custody nor irreconcilable differences are recognised. So, why do they form part of our vocabulary? They seem to have infiltrated our language from the US. After all, we have grown up watching Suits, LA Law and Marriage Story. Whilst we might have hoped that UK TV drama “The Split” might have helped to move us away from these American phrases, they are still very much in our every day language.

In terms of irreconcilable differences, the 5 facts in the law of England and Wales are dealt with above. However, when it comes to custody, shared care is the way that the legal system in this country is currently moved. Whether the shared arrangements are 50:50, or one parent has the children one night a week, these would still be classed as shared care.

If you would like some help with navigating the financial arrangements in your divorce, either at the very beginning of separation, in negotiating the financial settlement or implementing a pension sharing order, please do get in touch