Divorce lawyers take to Twitter to uncover concealed marital assets

It seems that there is no area of modern life that social media has not touched – even divorce law. Indeed, divorce lawyers are turning to sites such as Facebook and Twitter to find marital assets which have been squirrelled away by unscrupulous spouses during legal proceedings when getting divorced.

Sadly, it is common for parties involved in financial disputes during divorce to attempt to understate the value of their assets so that their ex-partner cannot receive their fair share. However, judges are now allowing lawyers to use social media platforms to search for evidence of financial non-disclosure or under-disclosure.

Given the enormous user figures enjoyed by social media sites, there is an enormous amount of information available and spouses may find that they have unwittingly revealed something in a post or personal message that comes back to haunt them when going through the divorce process.

It is therefore surprising how much a divorce lawyer can deduce from the information posted on social media. It can not only reveal if the person has been dishonest during proceedings but also where the missing assets might be. Indeed, when people type their direct, messages, statuses or tweets, they are unlikely to be thinking about the prospect of such information being used against them in the family courts.

The fact that such private information is being accessed without the permission of the individual who set up the profile has creating some tensions regarding the privacy of information. However, it is clear under English law, that privacy laws are secondary to the court orders that allow divorce lawyers to access some information where financial deception is alleged.

Fearing a backlash from users, social media platforms have been quick to clarify their legal position stressing that access will only be granted where an official court order has been granted. This is important in ensuring that the privacy of the everyday user is protected while avoiding obstruction of the legal process.

Another new development in divorce law is the treatment of Bitcoins and similar online currencies. The value of these can be complex and divorce law specialists are growing to realise the role that they can play in covering up marital assets. One can therefore expect to see such currencies included within future divorce cases.

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Declarations of trust – what are they and how can they help you?

We’re getting married and going to live happily ever after. Right?

When planning a wedding, no couple wants to think about the possibility of the marriage failing in the future – but putting romance to one side and taking time to agree some basics can save a lot of cost and heartache in the future should things not work out as you had planned.

You may be planning to buy your first house together, one of you may be moving into a house owned by the other, or anything in between – it’s important that you give some thought as to how your respective interests in the house will be protected. This can be done by a declaration of trust.

This isn’t negative thinking – it’s positive planning, and shows that you respect each other and are mature enough to agree how the house should be dealt with if your relationship fails and you split up.

What is a declaration of trust?

It is a document which can be prepared where two or more people buy a house together, to record who has paid what towards the purchase cost and other outgoings, and how the joint owners plan to divide the sale proceeds at a future date.

When is it used?

Declarations of trust are most commonly used where the deposit, purchase price or outgoings in respect of the property are not met equally. They can also be used to record money which is paid towards the purchase by other people – for example a parent.

What does it cover?

The document can cover:-

• contributions to the deposit

• how the mortgage payments are going to be met

• how other payments such as utility bills and insurance are going to be paid

• if the house is sold, how the net proceeds of sale (after payment of the costs of sale, such as estate agents’ commission and legal fees) are to be shared between the couple and any third parties, eg a parent who helped out

• provisions to protect your children – for example, to permit children to stay in the property until they reach 18 or a greater age

• an agreement as to how the house should be valued, if a dispute arises

• provisions for buying each other out

Does it have to be in writing?

Yes, any agreement in respect of land should always be in writing to be valid.

Is it complicated?

How complicated the document needs to be will be dictated by your situation. Many declarations of trust are very straightforward, and simply record agreement as to the percentage shares which each owner has in the property.

Can we do it ourselves?

Your house is probably the most valuable asset you will acquire during your lifetime. It makes sense, therefore, to take proper advice from a solicitor as to how to best protect your investment in it.

The couple should each take their own, independent, legal advice, from their own solicitors. This ensures that each will each receive legal advice tailored to their own position. it is not possible for the same solicitor to advise both of you because of professional rules relating to what is called conflict of interest.

What if our circumstances change?

The deed can be re-written by the parties at any time provided they are in agreement, if the terms of it need to be revised because of a change – for example, one co-owner could pay off all or part of the mortgage and the shares in which the couple own the property should be changed to reflect this.

If you and your partner owned a property jointly before your marriage, it is important to review and resign it following your marriage to make it clear that your wishes still stand.

Wouldn’t everything be sorted out on divorce anyway?

In getting divorced, then an agreement would have to be reached as to how the assets of the marriage should be split – but usually, unless there is evidence to the contrary, the starting point is that the sale proceeds of the matrimonial home would be split 50-50.

This may well not suit or be fair in your particular situation and so it’s important to have a document in place which evidences your intention as to how you originally agreed the property would be divided.

Can you explain “tenants in common”?

There are two different ways of owning property jointly. Joint tenancy means that neither of the co-owners has a defined share in the property and on the death of the first to die, the property automatically passes to the surviving co-owner by what is called the right of survivorship.

Tenancy in common provides for you each to own a defined share in the property, which will pass on your death in accordance with the terms of your Will – and this form of ownership must be used in conjunction with a declaration of trust.

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Proportionality of divorce costs – the new approach?

The recent divorce case of Young v Young has refocused the discussion surrounding high legal costs and triggered much debate about how proportionality of costs can, in some circumstances, put claimants at a disadvantage.

By way of background, the divorcee Michelle Young was awarded £20 million but spent remarkable £6.4 million in her legal costs which were described by the judge as ‘completely unacceptable’. The judge did acknowledge, however, that these costs were a direct result of her financial difficulties in getting divorced which had caused her to repeatedly change legal teams.

Proportionality

The overriding objective of the Civil Procedure Rules has recently been amended to make sure that the proportionality of costs is a central tenet in settling a dispute. There has been no detailed guidance on how this is to be interpreted but the current theme emanating from the courts appears to be that the amount at stake will be the main consideration when assessing whether costs are proportionate. Consequently, this means that even if costs are reasonably incurred and necessary for pursuing a case, if they appear disproportionate to the amount won, then they will be reduced accordingly.

It can therefore be seen that this current reasoning could work to the advantage of an unhelpful defendant. It is obvious, for example, that if a defendant is repeatedly opposed to the idea of negotiating a financial settlement then the costs will be higher. This can lead to the scenario where the cost of litigation will become too high in relation to likely damages. The result of which means that even if a claimant is successful in bringing their claim they will still not be able to recover all their costs from the defendant.

Further Impact

This issue is not only relevant to high cost divorce cases but may also become an issue for many other claims. In areas where legal aid has been removed, such as with employment disputes, the claimant will have to think carefully when pursuing an action as if their costs are too high then the balance of their incurred costs will have to be factored against the eventual likely settlement they could achieve.

Proportionality of costs could consequently have the impact of making it uneconomical for private individuals to bring relatively small claims. This makes one consider, how well does proportionality of costs sit with the other element of the overriding objective of dealing with a case justly?

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FAQs – the financial aspects of divorce and divorce settlements

Will I have to go to court over my financial dispute?

Courts only become involved in the division of divorce finances if they receive an application for a financial order. Therefore, court action is only necessary if negotiations outside court have completely broken down and and agreed financial settlement cannot be reached.

Reaching a financial agreement outside court enables both parties to save on legal fees and also obviates time consuming court action. However, to ensure that your interests are properly safeguarded, it is essential that if you have not used an expert divorce solicitor to help you negotiate the financial agreement with your ex-spouse, you should make sure you get specialist legal advice on any agreement – and that you have any agreement properly recorded in a consent order because otherwise there  is a real risk that later down the line, your unsatisfied ex-partner could return to the court to seek amendments to the agreement.

Will our financial assets be divided 50/50?

Whilst assets are divided 50/50 in many cases, this is by no means a blanket rule. Marriages which lasted a long time will often result in an equal division of divorce finances because the relevant spousal contributions are thought to even out. Contributions in the home are thought to be important as well as the cash contributed by the breadwinner.

Whilst financially independent parties with similar earning potential might well end up splitting a family assets on a simple 50-50 basis, but many marriages, for example, where the marriage itself is only short lived, or which involve  small children, or little wealth, are likely to find that a simple, even split of family assets is not the outcome.

Will courts consider a ‘clean break’?

Courts are very receptive to ‘clean break’ order applications, in appropriate circumstances. These dictate that maintenance arrangements are unnecessary and that parties are in agreement as to how to divide divorce finances once and for all. Courts will approve these if they suspect that there are inadequate funds for each party to rebuild their lives. However, they will probably not be appropriate in cases where ongoing maintenance for children is required..

What about a consent order?

A consent order is essentially formal approval by a family court of a financial agreement made between the parties.

Applications to the court for such orders must be very detailed and list all matrimonial assets and liabilities. Why? Because the courts have made it perfectly clear that they’re not simply there to rubber stamp agreements – every family judge will need to make sure that the agreement contained in any consent order is not only fair and reasonable in the circumstances, but also that such agreement has been made on the basis of full and frank financial disclosure by both parties – so that the agreement is made on the basis of a full understanding of both parties individual financial circumstances.

Although an application for a consent order can be drawn up without a solicitor, our firm advice is that you always need specialist legal advice first. Financial settlement after divorce may be one of, if not the, largest financial agreement, you will ever make – you need to make sure you know your rights and exactly what you’re getting under any consent order and exactly what rights you are giving up

 

Which assets/liabilities will the court need to know about?

Put simply, all of them.

Full disclosure is required, meaning that the following steps should be taken:

• Valuation of all belongings e.g. antiques, cars etc.

• Valuation of savings, pensions and other deposits

• Valuation of any businesses or shares owned

• Find out the surrender values of any endowment policies from the relevant insurers

• Valuation of the equity value of the home. This is calculated by taking the remainder of the mortgage away from the current value of the house

• Calculation of all debts

Need advice on a Financial Settlement After Divorce? Contact us today

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I’ve come to an agreed divorce settlement with my husband – can we split the pension without a formal court order?

Any agreed divorce settlement regarding pension arrangements needs to be finalised through the court, as it’s not otherwise possible to divide pension arrangements. The members’ retirement benefits also have to be divided in a court order. All of this is because the pension provider or scheme can’t act to divide the pension without permission from the court.

A clean break court order is considered final – but it doesn’t need to be contested if the parties have already come to an agreement through their solicitors about division of the family assets. The court order will normally simply give consent for the agreed parties to go ahead and for the scheme provider to divide the pension.

Pensions and divorce involve a complicated area of law. Make sure you get the right legal advice from a specialist divorce solicitor.

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What happens to the family business after divorce?

If your marriage has broken down, you are likely to be concerned about the security of any business you own either in partnership with your spouse or as a sole trader. Indeed, any business you own individually or as a family will be viewed as a divisible matrimonial asset.

Your family business and your divorce – the changing court approach

Over the years the attitude of the family courts in divorce cases towards the family business has changed. Previously, such businesses were afforded considerable protection and their divisibility was considered in terms of the income they generated rather than the value of the business as a whole. Now however, it is not considered strange for a court to order to sale of the business so that the proceeds can be fairly distributed between the parties.

In cases where sale of the business is avoided, it is still possible that the business will be completely restructured. When the business is valued, any properties owned, pension scheme assets and the input of each partner will be taken into consideration. Valuation of the business is a crucial process and it is important to remember that it will have a significant effect on third parties with a stake in the business or who work there for example because any decision will be binding for them too.

Once you sense that your marriage may be over, it is sensible to seek quality legal advice straight away. The earlier you start the valuation process of your business, the earlier you can reach a fair settlement that safeguards your interests and avoids unnecessary conflict.

Getting divorced? Worried about the family business? Contact us now

When your long-term financial prosperity is at stake, it is comforting to know that the divorce solicitors representing you are experts in their field. Our divorce law team have vast experience of financial proceedings and the problems of dealing with the family business in divorce – and can help protect your critical financial interests.

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The role of “pre-nups” in overseas divorce

In many countries, the financial disputes arising from divorce can be subject to very severe laws unless a prenuptial agreement or “pre-nup” has been made. The UK is also renowned for being particularly munificent when it comes to ordering maintenance payments. Unlike many overseas divorce courts, UK courts tend not to strictly apportion finances by for example, redirecting a percentage of the husbands earnings to the wife.

Most countries in Europe and large areas of North America consider pre-nups to be binding contracts made between adults which should be recognised by law unless one or both parties was forced into the agreement or did not receive legal advice. Famously, UK courts have not had the same respect for these agreements and have developed a reputation for ignoring the terms of pre-nups. However, the 2010 Radmacher ruling in the Supreme Court, in which it was ruled that a German heiress did not need to pay her French husband any more than the terms laid out in a prenuptial agreement.

A good example of how anomalous the UK and Ireland are for their refusal to recognise pre-nups as conventional contracts is that Malta, which doesn’t even grant divorces, still accepts agreements regarding shared property.

It must also be remembered that when making a financial order, it’s scope will generally only extend to the jurisdiction in which the order was made, meaning that overseas assets may be unaffected.

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Incorrect judicial drafting – more grounds for appeal?

I had an interesting conversation earlier today with a local district judge. We were discussing the potential problems that family law courts are going to be facing following the almost simultaneous reduction in the opening hours of many court offices, along with the removal of legal aid from almost all divorce cases – delayed, all public funding, for divorce remains available only in limited circumstances, mainly involving domestic violence.

He, like other district judges. I have spoken to, is pessimistic about the effect of these changes on the court system – they all felt that amongst the significant problems that will emerge over the forthcoming months and years are a huge court backlog [which will of course slow down all family cases – not just those who are representing themselves] and concerns about access to justice.

However, he mentioned something which I haven’t seen discussed openly before – the lack of practical divorce and family law expertise of many judges when it comes to reviewing proposed divorce settlements. Relatively few judges are still practising solicitors – what’s more, just because you’re a district judge dealing with family cases, doesn’t mean that you have a history of practice in family law yourself. That hasn’t been so important recently because with most cases involving representation of both parties by experienced family lawyers, so the judge could rely on these experienced divorce lawyers, for example, to draft an final order once he or she had made a judgement. That’s not going to happen if both parties are representing themselves. Each judge will have to draw up their own order themselves – which could be asking a lot of a judge never been a family or divorce law practitioner.

Will they all get it right? Probably not. Will incorrect drafting by a judge of their own order give grounds for appeal – I reckon so.

Your divorce rights – what is a pension CETV? [cash equivalent transfer value]

A pension CETV is a cash equivalent transfer value which reflects on the capital value of the pension benefits which have been accrued within a pension scheme to date. It assumes that the member is leaving pensionable service and transferring their pension fund to another financial arrangement.

A pension CETV is the value of the funds transferred and accrued to date. It is sometimes suitable for achieving a fair valuation of any retirement benefits, particularly for straightforward money purchase schemes where a defined contribution is made and set up by your employer to provide their employees with a certain level of income when they reach retirement.

The CETV option isn’t so simple if you have more complex arrangements however, such as discretionary benefits provided by Trustees, spouses’ rights or death in service payments which can result in a CETV which isn’t fully valued.

For members who leave pension schemes early, a CETV is also used to calculate their benefits as it’s an easy method to use because it can be obtained by the pension providers, i.e. an employer pension or a private pension.

When calculating a final salary pension however, a CETV is calculated on the basis that the member immediately leaves or terminates their pension scheme by leaving service . This can distort the value of any benefits which are taken into consideration.

Assessing your valuation options

When dealing with complex pension schemes or Final Salary schemes in a divorce, it is often necessary to obtain specialist advice from a pension actuary. A pension actuary will be able to give a fair valuation of the pension, taking into account all of the benefits and will also be able to advise on how the pension can be divided to achieve, for example, equality of income in retirement, and further advise on suitable valuation of the pension for offsetting purposes.

Pensions and divorce – make sure you appoint a specialist solicitor

Dealing with pensions is one of the most tricky areas when it comes to divorce – and any mistake can prove incredibly expensive. Sadly, some divorce solicitors don’t seem as fully clued up about the importance of pensions, and particularly how they should be valued, as others. We suspect that, as a direct result, there will be a significant increase in the number of professional negligence claims made against divorce law solicitors who haven’t properly dealt with their clients pensions.

Rest assured that all of our divorce lawyers really understand the importance of pensions in divorce – and how those pensions work. If you’re worried about what could happen to your pension upon divorce – call our specialists today.

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Can you earmark or share any pension in payment?

Yes, a pension in payment can be shared or have a pension attachment order made against it.

Some pensions will provide a lump sum payment upon retirement. An order cannot be made retrospectively against such lump sum, so unless it is still available by way of capital, you will have lost your opportunity to share in that, however the income stream from the pension can be subject to pension sharing or attachment.

If a pension is in payment and you receive a pension attachment order, you will receive the pension income immediately. The disadvantage of an attachment order however is that if your former spouse passes away or you re-marry, you will lose your pension income.

If a pension is in payment and you receive a pension sharing order, you will have your own pension fund. Depending on the scheme rules, you may be required to keep your pension with the existing scheme or transfer it externally. You will only be able to receive your pension in accordance with the rules of the scheme and therefore if your spouse is older than you, you could find that they are receiving their pension and you have to wait for yours to be paid out.

When dealing with a pension in payment, it is still possible to obtain a valuation of the fund. This is known as a CEB value (cash equivalent benefit).

The value of a pension in payment diminishes with each monthly payment made from the fund and therefore if your spouse has a pension in payment that you wish to make a claim against, you would be advised to do so sooner rather than later. Further if you are no longer married to your spouse but still wish to make a claim against their pension (whether in payment or not), it is important that you make that claim urgently, as, if they were to pass away before a pension order was made in your favour the value of any benefits could be lost.

Divorce and Pensions – you need specialist legal advice

When it comes to dealing with pensions upon divorce, both the law and the rules involved are complex – so make sure you get a divorce solicitor who really understands pensions and divorce. Rest assured that all of our family law and divorce team have that expertise – so call us today or email the team at advice@the–divorce-solicitors.co.uk

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