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Legal strategies for managing tricky later-life divorces

7 minute read

Is it harder to navigate asset division when divorcing later in life?

Divorce is always a challenge, regardless of the age of the partners. But as we age, particularly where people have been married for years or decades, we can find our lives and assets more and more entangled. And so-called ‘silver’ or ‘grey’ divorces can present even more extensive division challenges to address.

We asked legal expert Ashley Le-Core, a senior associate at Stowe Family Law, for some advice when it comes to splitting things up, particularly for couple who have been together for a long time.

 

How do you choose a divorce solicitor?

It’s important to pick someone you can work with easily. It’s not just about having clever representation – you need to feel like that person is completely in your corner, and that you have mutual liking and respect for each other.

“What you will most likely find is that you have to build a rapport with the person who is representing you. It is a very difficult time, and you are going to want to deal with someone that you feel has truly got your best interests at heart.”

Ashley advises looking out for “a firm with good representation, clearly good communicators, and someone who is attentive...”

A solicitor’s role is to “navigate the divorce,” explains Ashley. “The divorce process now has become more straightforward than it ever has been, and it is an online process.”  So it’s a calmer process, no more fighting things out in a courtroom, and your respective solicitors should offer the best advice to navigate the experience. They’ll also handle all the paperwork and legal documentation.

 

Should you try mediation?

Obviously when a marriage breaks down, the first – and ideal – port of call is to talk to each other, and try and reason things out between you, work the split out amicably. But that’s not always possible, for many reasons.

Assuming you have tried to handle this together and negotiations have broken down, the next thing is to talk to your solicitor. And Ashley says the first thing they ought to suggest is mediation.

Ashley explains that not only will this take “a lot of the emotion out of the situation,” mediation advice also shines a light “on what a solicitor will most likely ask them to focus on if that [divorce] route is pursued.”

By going down the mediator route, couples can explore “good advice as to what a settlement would look like, and can do that whilst working with the couple together, whereas solicitors of course do not work together in this way.”

 

How to deal with property and asset division

When dividing your assets for your marriage Ashley expresses how “it is exceptionally important that you feel ready to be able to commence on that process.”

“It can be very in-depth, quite upsetting (naturally) - and therefore if you're not in a good head space when you go into that process, it can hinder the progress you can make.” 

That is why “solicitors will always advise that if there is an amicable solution to be found, then it should be pursued, and if you are not yet over the end of the marriage or indeed if there is a lot of animosity, diving into that process may well not be in your best interests in the long term,” as Ashley explains.  

Ashley further advises that hiring a solicitor will always be a sensible option, “so that any decisions can be discussed carefully and made with a measured approach, but the mental preparation is exceptionally important when considering starting this kind of process.”

“Practically, once you have filed for divorce, you can take as long as you need to organise your assets and finances. This must always be done before you apply for your final order (previously the decree absolute), but there is no time limit after your initial 20-week cooling period.”

 

What advice is there for financial planning post-divorce?

When thinking about financial planning for post-divorce, Ashley explains how, for the UK courts, “the settlement will be reached on the basis of what each spouse needs.  As such, the court will only give to each spouse what they believe they need, in order to continue a comfortable lifestyle moving forward.”

But this could mean you end up with a reasonable sum. With this in mind, “financial planning with the funds that come from the settlement… if it is over and above potentially purchasing a house and having a pension to live on, a financial planner would be a sensible first port of call,” says Ashley. “They can advise you how to invest those funds and this will clearly be in your best interests. There may be some complexities if one or both of you have started drawing from your pension, so it is always best to seek legal advice.”

“The most likely effect of the divorce is of course a feeling of unknown financial security. As long as there are enough assets at the end of a marriage in order to rehouse both people appropriately, then that financial security can feel in place from the beginning.”

If this is not the case for you, however, “it means that both people need to re-look at their finances in order to consider themselves comfortable, then a lot of thought should be given to financial planners and speaking to family and trusted friends with a view to trying to understand how to best navigate the outcome of this matter without spending excessive legal feels to force through an outcome.”

 

What happens to the family home? Your shared belongings?

The family home is often the hardest asset to negotiate over, especially if you and your partner – and maybe your growing family – have long term history there. It’s a hugely emotive negotiation. But a fresh start can also be positive…

Ashley advises that “In order to start your new chapter, you potentially have to cut ties to everything that was in place before, including a house.”

It can be hard letting go and you may want to stay in the property. But a question that Ashley always asks their clients is “how they feel living in a property where they have a significant number of memories, and potentially not the nicest memories, if the couple started their divorce whilst living together.”

Don’t underestimate how hard this part might be. As Ashley further advises, “a new start might be the better option in the long term. If you are struggling with that aspect mentally, getting in touch with a divorce coach, a counsellor or your GP if necessary would be a sensible first step, to ask somebody to help you to come to terms with the changes that are coming.”

 

There’s a prenuptial agreement (prenup) that was created years ago. Does it still stand?

You’re most likely aware of what a prenup is, but it’s a legal agreement contract entered into by a couple, before the marriage, identifying dispersal of assets should there be a divorce. And it comes with its pros and cons.

The pros

As Ashley explains, the positives for the prenup would be that it conjoins your agreement to “protect any wealth that was brought into the marriage. If one spouse was particularly wealthier than the other, it is common practice that prenuptial agreements (whilst not legally binding yet, in this country (the UK), but considered exceptionally persuasive) are very normal in cases such as these.”

Another pro is that, when a marriage breaks down, “the prenuptial agreement takes precedence and the individual who came into the marriage with more wealth should be able to have the majority of those funds returned.”

The cons

Ashley explains that some of the cons include “that of course it can put in place an arrangement in some circumstances that ends up massively out of date.” For example, “if you agreed one pattern at the beginning and then there are significant changes throughout the marriage, it then can tie the couple to an agreement that may well have been made a significant number of years ago.”

So as an aside, if you have a prenup, it’s worth revisiting this regularly. “You should regularly review the agreement, particularly when any significant changes occur to your finances, property, or children.”

 

Will divorce affect my pension? And what are the financial implications?

When thinking about your pension, Ashley explains how a “divorce itself will not affect any pensions, but it is likely that if one spouse has a larger pension pot than the other, then they may well be expected to share some of that pension with their spouse as part of the divorce process.”

In most cases, a pension actuary can be instructed, where it’s decided “how indeed those pension pots should be split to make it fair for each spouse.”

As Ashley states, “there could be arguments to attempt to ring-fence certain assets due to having only just received them, queries around prenuptial agreements, or other such arguments, but everything will be considered by the court initially, before making an appropriate determination.”

That’s why it’s very important “to be absolutely, categorically clear when you end your marriage as to what all assets are, where they are and how much is in them.”

 

Do you have a firm grasp on all your joint assets (or liabilities)?

If not, it might be worth taking the time to audit what you have. Regardless of whether you plan to divorce or not!

Nobody goes into a marriage expecting to divorce. And when you’re in love, it’s hard to believe that one day you could be at loggerheads. But there’s a famous old saying, “good fences make great neighbours,” which basically underlines the importance of clear boundaries and agreements.

It’s just good sense to keep a tally on, and have regular discussions about, your joint assets. And hope that you’ll never need to dig out the paperwork down the line.

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