How to Protect What’s Yours

February 13, 2019 8:41 am

If you’re about to embark on the road to divorce or are already in the midst of a divorce, you’re not alone and you want to be able to protect what is rightfully yours during divorce.

Regardless of the circumstances, going through a divorce can be traumatic for not only the two people separating but also those close to them.

It is presumed that the assets owned by both parties are split equally down the middle, but nothing could be further from the truth. Fair and equitable does not mean equal or 50/50, and that is an aspect of divorce that many fail to understand.

So, what can you do to try and protect what is rightfully yours during a divorce?

The First Step is to Seek Legal Advice
It is important to never try to reach an agreement with your spouse before seeking expert legal advice from a lawyer who deals in divorce and family law. Often assets that you may not have considered will become apparent when getting advice from a legal professional. If you are fortunate, an agreement may work more in your favor if you have the advice of a lawyer rather than trying to come to an agreement with your spouse.

Be Wary of Your Spouse Moving Assets
Transferring assets to third parties or moving them offshore is not a sensible thing to do when going through a divorce. Doing so will give the court the impression you are attempting to hide assets and as a result, the courts may punish you for taking such an action.

If you believe your spouse is attempting to hide assets, it is important to have your lawyer or a forensic account review financial documents in order to reveal any irregularities. If your spouse is found to be hiding assets, they can be found in breach of the court’s demands for fairness and could be sent to jail.

Protecting Your Home
The rights to your home, or the money from the sale of it, all depends on the ownership agreement that you have in place with your spouse.

If you are joint tenants, as most often are after deciding to purchase a home together, neither party can sell the property without prior consent from the other. If you make a joint agreement to sell the property and both move out of your marital home, any profit made from the house will be split equally between you.

If you are what is known as tenants in common, you both agreed on how much each of you would own of the property when you purchased it. This agreement doesn’t change even if you got married after the purchase of the property. What does change, however, is how the share of the property is split in the event of a divorce or dissolution.

In this case, the money from the property will still be split 50/50. In the event that one of you dies before a divorce, your originally agreed upon share of the property will pass on to whomever you leave it to in your will. If a will has not been drafted, then your share will automatically go to your spouse.

If you or your partner owns the property, i.e. the property is in your or your ex-partner’s name, the legal owner can sell the property without the permission of the other. However, the partner who doesn’t have ownership can register their interest in the property. If they do so, the courts will take this into account, especially if you have contributed to the mortgage and bills or if there are dependent children living there.

Protecting Your Company
Annoyingly, if you own a business that your spouse was not involved in, the courts usually see an equal division of the business assets as a starting point. In such circumstances, it is possible to argue that you built up the business before marrying, or that your exceptional contribution to the company, and your partner’s lack of, warrants you take more than an equal share. In order to protect yourself, it is advisable to gather evidence of when you started the business and your level of involvement with the day-to-day operations and the business’s success to take to your lawyer.

Protecting Your Pension
During a divorce, any company or personal pensions are taken into account when dividing assets. First, the worth of all pensions is calculated to determine the transfer value. For example, if a wife has had a pension for six years and the parties have been married for four years, both parties will split the pension amount for the duration of the marriage. State pensions cannot currently be split under current divorce law.

If you are due a large pension payment after a divorce has been finalized, your spouse will still be able to claim a portion of your pension payment, unless they remarry. If you divorce before a lump payment is made, your spouse can claim a share of your pension whereby a proportion of your pension is paid into an existing or new pension in their own name.

Alternatively, your pension can be offset against another asset. For example, you can keep the entire value of your pension in return for giving your partner a greater share of the company or your house. Unfortunately, this is likely the only way that you won’t have to sacrifice a proportion of your pension during the divorce process.

Dispute Resolution
If both parties would prefer to settle splitting of the assets out of court, a smooth and effective way to manage any assets that need to be divided is to go through a dispute resolution process. Dispute resolution involves appointing a lawyer to act as a mediator. Mediation allows both parties to voice their opinions, and the mediator’s role is to resolve any disputes between the two parties. The dispute resolution lawyer is neutral and acts on behalf of both parties to try to come to an agreement.

 

(This article was written by  on September 19, 2018 and reposted with the permission of divorcemag.com)

This post was written by Maria Tilkens

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