Divorce: “Should I stay or should I go now?”

When a relationship feels like it’s hitting all the wrong notes, it’s only natural to start thinking, “Should I stay, or should I go?”

Cue The Clash – ironic, isn’t it? Deciding to leave or stay brings a wave of questions and concerns: emotions, the kids, finances, and the unsettling unknown of what lies ahead. The key question which often comes up: should I move out?

Most lawyers will tell you not to. Normally, this is not because you will be giving up your share of the marital home or that you will otherwise face some financial penalty for doing so. It is because your other half will then be left living in the home with no incentive to sort out a settlement. This may result in their using tactics to delay or frustrate proceedings or a settlement and, even more so, when part of the settlement involves the sale of the marital home. And, even if a settlement is agreed and a court timetable is set for the sale of the home, that may not overcome this difficulty. Yes, ultimately the sale will take place but, in the meantime, you might lose a purchaser and who wants the delay and expense of having to go back to court to enforce an order for sale, because the estate agents or potential purchasers are being given the run around on the basis that all viewing times are ‘inconvenient’.

If you move out, you must obviously consider the financial implications. You will be paying for your new home and possibly also having to contribute towards the mortgage on the marital home (you remain liable if the mortgage is in joint names), plus maintenance for the children and maybe spousal maintenance as well. All of this depends on the financial position of the parties and every case is different. In an extreme case, where the remaining party must pay the mortgage, they might even argue for a larger settlement to compensate them. Where there is no suitable or affordable second home and parents want their children to experience as little disruption as possible, a comparatively recent idea is a ‘nesting’ arrangement. This involves renting a nearby property which the husband and wife use on alternate weeks whilst the other returns to be with the children in the marital home. This is not a straightforward solution but can work despite practical disadvantages concerning housekeeping issues and if another relationship is formed.

If the marital home is owned by your spouse and you move out, then to protect your interest you should register a Matrimonial Rights Act Notice at the Land Registry. That will have the effect of notifying a purchaser that you have an interest in the property and prevent the property from being sold without  your knowledge. If children are involved, moving out normally means you are going to see less of them. Although it may be difficult to have a discussion, if possible, before moving out try and agree when and how often you will see the children. This will also establish a pattern which will be important, if subsequently there is a dispute about how often you will see the children and how long they will stay with you. Finally, if you are moving out, this is the best time to take your possessions and anything else you want. Retrieving them later may prove a lot more difficult. Of course, living together may become intolerable and to defuse an already difficult situation it may be best for everyone that you do move out. However, before doing so, be aware of the implications and take advice. We are a team of 5 experienced lawyers but, what makes us different to a firm of solicitors, is that we
are acting as divorce consultants. We help people navigate the legal maze and stop them making expensive mistakes. We use our experience of the divorce process to find solutions to lower the
temperature and save money. If the above resonates or you know someone who may benefit from speaking to us, please do contact me. We don’t charge for an initial consultation.

How to divide up possessions when you divorce?

Dividing up marital possessions often causes significant problems and is frequently addressed at the end of the divorce case, after the financial and children’s issues have been settled.

This is an emotional subject, and for obvious reasons, solicitors often have great difficulty in keeping it under control. The process can be both time consuming and costly if not handled properly.

Common challenges in dividing possessions

Dividing up marital possessions often causes significant problems and is frequently addressed at the end of the divorce case, after the financial and children’s issues have been settled. This is an emotional subject, and for obvious reasons, solicitors often have great difficulty in keeping it under control. The process can be both time-consuming and costly if not handled properly. Many people spend thousands of pounds arguing endlessly over items that have little monetary value but hold significant emotional attachment. This can lead to unnecessary legal expense to determine ownership disputes, which further strain both parties financially and emotionally.

A constructive approach to dividing possessions

To avoid prolonged disputes, here’s a step-by-step guide to one constructive approach:

• Categorise Items: Create separate schedules for different categories of items, such as kitchen items, furniture, artworks, sound and music equipment, etc.

• Assign Values: Agree on the value of each item listed in the schedules. This can be done through mutual agreement or for valuable items, by consulting a professional appraiser.

• Toss a Coin: To decide who picks first, toss a coin. The winner of the coin toss gets to choose the first item from the first schedule.

• Alternate Picks: As compensation for going second, the other party is allowed to choose the next two items. After that, each party alternates in choosing an item until the schedule is exhausted.

• Repeat the Process: Once a schedule is exhausted, move to the next schedule and repeat the coin toss. The winner of the second toss then has the option of taking, if preferred, the second and third items in the new schedule.

Additional tips for a smooth division

• Prioritise Emotional Value: Understand that not all items have the same emotional significance to both parties. Open communication about why an item is important can help facilitate more amicable decisions.

• Hire a Mediator: If the process becomes too contentious, consider hiring a neutral mediator. Mediators specialise in helping couples reach mutually acceptable agreements without the high costs of arbitration or court.

• Document Everything: Keep detailed records of all possessions and their agreed values. This documentation can prevent future disputes and serve as a reference if disagreements should arise.

• Be Willing to Compromise: Both parties should be prepared to compromise. Holding on to minor items can lead to unnecessary stress and legal expenses. Focus on the bigger picture.

• Consider Future Needs: Take account of the future needs of both parties. For example, if one person is keeping the family home, they may also need the items that go with it, such as appliances and furniture.

Legal considerations

• Prenuptial Agreements: If a prenuptial agreement exists, review its terms regarding the division of possessions. This document can determine how assets are allocated.

• Tax Implications: Consider the tax implications of dividing certain assets. For instance, selling a valuable item to divide proceeds might have tax consequences that need to be addressed.

Dividing possessions during a divorce is undoubtedly challenging, but with careful planning, clear communication, and a willingness to compromise, it can be managed effectively.

We are a team of 5 experienced lawyers but, what makes us different to a firm of solicitors, is that we are acting as divorce consultants. We help people navigate the legal maze and stop them making expensive mistakes. We use our experience of the divorce process to find solutions to lower the temperature and save money.

If the above resonates or you know someone who may benefit from speaking to us, please do contact me. We don’t charge for an initial consultation.

The Bank of Mum and Dad

To get on the property ladder, couples are often having to rely on gifts from parents. However, should the couple subsequently divorce, this can result in unintended consequences.

The general position is that, unless at the time the gift is ‘protected’ in some way, in the event of divorce the money involved is likely to be considered as part of the marital assets to be divided between the parties.

However, a gift can be protected either by documenting it as a loan (carrying interest and with a repayment date and other features of a loan), or possibly by the parties entering into a pre-nuptial agreement.

The cost of contested court proceedings at the time of divorce can be very expensive and, in comparison to the cost of court proceedings, the cost of preparing a loan agreement or a pre-nup at the outset is nominal.

We are a team of 5 experienced lawyers but, what makes us different to a firm of solicitors, is that we are acting as divorce consultants. We help people navigate the legal maze and stop them making expensive mistakes. We use our experience of the divorce process to find solutions to lower the temperature and save money.

If the above resonates or you know someone who may benefit from speaking to us, please do contact me. We don’t charge for an initial consultation.