Out of court settlements and negotiations
Although deciding who gets what following a separation or divorce can be contentious, not all cases need to conclude in court. Our team has significant experience and skill in negotiating favourable settlements whether that be through telephone contact, correspondence or round the table. On occasions, our clients are keen to negotiate directly with their spouse and use us as a “sounding board” to ensure that the agreement being considered is fair and reasonable. In addition to being able to provide you with specialist knowledge and expertise in the strategy and conduct of negotiations, we can also offer you alternatives. These include effective arbitration and mediation.
Divorce and going to court
There will be cases when going to court to secure input from a judge is inevitable. The team at McAlister Family Law are highly experienced in attending court and putting together strategies to ensure the best possible result is obtained for you. Financial settlements ordered by the court after a divorce (whether by agreement between the couple or after a contested court hearing) usually take one of two forms:
Capital provision (which can include a payment for housing) together with ongoing maintenance (which can be for a fixed number of years), or
What is known as a “clean break” order where one capital payment (perhaps by instalments) is made, completely ending the financial relationship between a couple.
Court orders and what is considered
The court has the power to make financial awards (known as financial remedy orders) using a wide variety of mechanisms including the transfer of property, shares or other assets, the payment of cash sums and/or the sharing of a pension. This is a discretionary area of the law so there are no fixed percentages or solutions. To determine the appropriate divorce financial settlement for you, the court will follow certain specific criteria laid down by statute (section 25 of the Matrimonial Causes Act 1973) and will consider:
- The length of your marriage
- Your age and state of health
- Your family’s standard of living
- Income, earning capacity, property and financial resources now and in the foreseeable future both in this jurisdiction and worldwide
- Financial needs, obligations and responsibilities
- Contributions made to the family or which will be made in the future (which includes both financial contributions and contributions in other ways, for example by caring for children)
- The value of benefits that would be lost on divorce (and includes potential future losses and, potentially, compensation)
An overview of the court process can be seen by referring to the Finances flowchart. The McAlister Family Law divorce and finance team will advise you on the range of outcomes that a court might consider appropriate for you and your family and the different ways we can assist you in reaching a financial settlement when you are going through a divorce.