Financial Remedies in Divorce: Options, Orders, and Factors, Study Guides, Projects, Research of Remedies

Download Financial Remedies in Divorce: Options, Orders, and Factors and more Study Guides, Projects, Research Remedies in PDF only on Docsity! Financial Remedies – updated Feb 2014. APPLICATIONS FOR FINANCIAL REMEDIES Introduction When separating or divorcing, the most difficult area is usually sorting out the finances. This includes your family home, other assets, pensions and maintenance. Different Routes Your options to resolve financial matters are:- Collaborative Law – all of our lawyers are Collaborative Lawyers and, provided your husband/wife or partner instructs another Collaborative Lawyer, we can agree at the outset not to go to court but to resolve matters by round table discussions in which you fully participate. Mediation – one mediator will meet with both your and your husband/wife or partner to facilitate discussions between you. Please note that, from 6th April 2011, you will have to attend a Mediation Information and Assessment Meeting before issuing any court proceedings to see if this is a suitable way to resolve issues between you (certain exemptions apply). ‘Traditional Route’ – in other words using solicitors to negotiate to hopefully reach an agreement but, failing that, asking the court to decide, by way of an application for financial remedy. With any of these methods, the requirement is to consider the complete income and capital position of the parties. The aim is to try and achieve a fair outcome, depending on the individual circumstances of this family and their respective needs going forward. The guidelines for this process are known as 'the Section 25 factors', referring to s25 of the Matrimonial Causes Act, 1973. (See below) The Powers of the Court The orders a Court may make fall into two main categories:-  INCOME  CAPITAL It is normal to include a claim for all possible orders on an application for a matrimonial order. Generally, an application for a financial remedy cannot be heard until Decree Nisi, or take effect until Decree Absolute. The income orders are as follows: 1. MAINTENANCE PENDING SUIT This is the only order which has effect before the decrees and is for the spouse in urgent need of interim maintenance before the divorce itself is finalised. 2. PERIODICAL PAYMENTS Financial Remedies – updated Feb 2014. More commonly known as maintenance, these are regular payments to a husband/wife for him/herself or on behalf of a child of the family. Please note that maintenance for a husband/wife only lasts until the happening of one of the following - -death of either the person making the payments or the person receiving them -remarriage of payee (i.e. recipient) In addition, consideration should be given to whether maintenance for a husband/wife would come to an end if they were to cohabit. The court will also consider whether it is reasonable to limit the duration of the payments, e.g. a return to paid employment after an initial period of re-adjustment, retraining or when children go to school etc. 3. SECURED PERIODICAL PAYMENTS As above, but an asset has a charge secured against it to ensure that the periodical payments continue. Any order for maintenance via periodical payments or secured periodical payments is always open to an application for variation, i.e. by either party, to increase or decrease the amount which is being paid, or extend duration of the order. This now includes the power to capitalise maintenance payments. The capital orders are as follows:- 1. LUMP SUM ORDERS One party makes a payment of a lump sum to the other. This is usually to redistribute assets or to compensate for maintenance etc. It should be noted that only one lump sum payment is possible, although it may be met by instalments. It is not possible to apply for variation on this type of order, unless it is being paid by instalments. 2. PROPERTY ADJUSTMENT ORDERS The Court has wide powers to redistribute family property, including the matrimonial home, including: -transfer of a tenancy from joint names into the sole name of one party -outright transfer of a property from joint names into the sole name of one party (NB. Requires consent of any mortgage company) -deferred trust for sale, i.e. one party remains in the property until a 'trigger event' occurs, e.g. children finish education or the party who remains remarries, and then the property will be sold and the proceeds distributed as previously agreed. -deferred charge, i.e. the property is transferred into the sole name of the occupying spouse, but the other spouse takes a charge over the property for (usually) a % of the net proceeds of sale.