Pension sharing on divorce

Pension Sharing

Going through a divorce is never easy; often the process can be painful and upsetting and leaves both parties with so many things to give consideration to including one of the most important aspects, the financial settlement.

During divorce proceedings all financial assets will be included and considered by the court and probably one of the most valuable assets theses days is the pension.

Since the introduction of the Welfare Reform and Pensions Act 1999 pensions have become an important financial aspect of many divorces with the act enabling couples to split the entitlement to their pensions.

When a couple go through divorce proceedings all assets must be included before an assessment/division takes place, either by consent or via court order. Where it is agreed or ordered that one or both parties pensions should be split the court will instruct the pension provider to divide the pension, ensuring that both parties have an entitlement to a share.

On receiving this instruction the pension provider will value the pension and the pension will then be divided on the day of valuation to avoid any changes occurring with that pension’s value.

It is rare that a pension will be split 50/50 and the value of the pension entitlement each party will receive will also depend on other financial assets owned by or awarded to each individual.

Once the pension entitlements have been decided one possibility is that one party will receive the pension account, minus the entitlement allocated to the other party, and will be able to continue to use the account in order to build up the fund as well as claim the benefits, whilst the other party will receive their entitlement in the form of a lump sum and will have no further access to any of the pension benefits.

Another variation of pension sharing is an Earmarking Order although this refers more to sharing the pension benefits rather than the actual pension itself. When an Earmarking Order is granted it means that the party who does not hold the pension is sent notifications by the pension provider every time the party holding the pension receives benefits on that pension and the benefits are then shared between both parties.

However, the party not holding the pension has very few rights with this option and, should the divorce be a particularly messy or unpleasant one with much bad feeling present, then problems may well occur such as the party holding the pension deferring any or all benefit payments so that the party sharing the benefits is unable to receive them as and when they are required. This option is really only suitable for couples who have undergone an amicable divorce and do not have any wish for a clean break.

Offsetting is another option to pension sharing which, although technically doesn’t involve the actual sharing of the pension, does mean that both parties have future financial security.

Offsetting can be used when a divorcing couple have a joint pension which holds the same value as their jointly owned property. The concept of this option is a rather simple one which enables one party to take over the full pension whilst the other party keeps the house. However, the party who opts for ownership of the property will obviously be left without a pension fund and so will need to consider starting up another pension scheme to ensure their future security.

A further alternative to pension sharing is for one party to set up a pension fund and make regular payments into that fund instead of making maintenance payments or making part maintenance and part pension scheme payments to the other party involved.

This is not always a suitable option, especially if the party due the maintenance payments requires those payments for their day to day living and the up keep of their property, but this option can prove a popular one for those who have not yet got round to setting up their own pension fund and can offer peace of mind with regard to the individual’s future security.

This post provided by family solicitors in London, where you can  also find advice on finances on divorce.

Finding the right divorce lawyers

If you feel your marriage may be ending and you are heading in the direction of a divorce, it is a good idea to take a moment to carefully assess your situation and decide whether or not you will be needing legal advice and assistance from a qualified professional. While a divorce can be completed without the involvement of lawyers, various unexpected complications can arise and that is where having a divorce lawyer can help you. They can help with various tasks, ranging from simply filling out the required forms for you to instructing you on what the best choice will be given the situation you are, for example, how much you should be expecting in terms of a financial settlement.

Finding The Right Lawyer

If you have reviewed your situation and decided that hiring a lawyer is the way to go, you must be aware of the fact that not all lawyers are the same and finding one that will best suit you and your needs is also an important part of the whole process. You should determine what you are looking for in the lawyer you will be hiring, taking into account what exactly you will be needing them for, whether they will simply be someone to help you fill out divorce papers versus someone who is going to be aggressive and negotiate strongly for you to receive a better financial outcome.

You should contact a number of lawyers before settling on a single one. Recommendations from family and friends are usually the best way to meet solicitors that will likely serve you well. Additionally, there are websites in existence that allow you to search for lawyers in your area, such as the Legal Adviser Finder (http://legaladviserfinder.justice.gov.uk) resource made available by the Legal Services Commission (LSA), which allows you to specify your postcode and the area of law with which you will be requiring assistance.

The Cost Of Hiring A Lawyer

Lawyers can end up being very expensive, especially if you make extensive use of their services, so you should make sure you are fully aware of their fees before agreeing to anything. It should be further noted that lawyers are bound by law to be completely transparent with their clients when it comes to fees and that they are not permitted to mask any hidden costs.

When it comes to how much it will cost, it is difficult to say with any certainty. A fixed fee is usually agreed in advance, before any work takes place to ensure both lawyer and client are happy with the arrangement. The cost itself will be directly related to how much time and work the lawyer is putting in for the client, which in turn is related to how much you and your partner can agree on. For example, if the lawyer is working around the clock to negotiate an agreement with your spouse’s lawyer because you cannot agree between yourselves, the cost will be significantly higher than if you agreed on all matters.

Mediation & Legal Aid

If you have a limited budget and cannot afford to pay a lawyer to be working on your behalf, you should contemplate using a mediator to solve your problems. A mediator is a neutral individual who works with the couple in order to try to settle any differences and is financially advantageous to both parties, especially if you are entitled to legal aid, which would make the mediation process completely free. To check if you are able to receive legal aid, you can use the LSA’s Legal Aid Calculator (http://legalaidcalculator.justice.gov.uk/calculators/eligiCalc).

This post provided by Darlingtons Solicitors.

International marriages

An international marriage can include a husband and wife of differing nationalities, a couple living together in a country which is not their home country or even a couple living apart from each other in separate countries.

Statistics

Within the member states of the EU there are approximately 122 million marriages, 16 million or 13% of which are international marriages and, in 2007, within the 27 states of the EU, 1 million divorces took place with 140,000 or 13% of those having an international element.

Divorce

According to divorce solicitors in London, the courts of the EU member states have differing ways of deciding which particular country’s law should apply when it comes to the divorce of a couple in an international marriage. This can create an awful lot of legal uncertainty and may even lead to one partner taking advantage of the other partner, who could be in a weaker position financially, with possibly the stronger spouse pushing through the proceedings in a jurisdiction where the applied law favours him or her over the other partner.

The Settlement

Financial settlements for divorces can vary from country to country so, in order to achieve the best settlement figure, the spouse will need to seek family law advice on this particular area.

Although it is possible to begin legal proceedings for a divorce in more than one country the EU rule states that the divorce which was started first will be the divorce which will prevail.

Going Home

Many family breakdowns in the EU have an international element and often, in the event of the breakdown, some partners will wish to return to their home countries to seek the support and comfort of their family and friends.

However, this isn’t as straightforward as just jumping on a plane and moving back into the family home, especially when there are children involved in the breakdown.

Children

If a spouse has children and wishes to relocate abroad with his or her children then English law states that the spouse will need to obtain permission from everyone who has parental responsibility of those children before leaving the country or to apply for an order of the English court.

If a child or children are removed, without permission, by a spouse to one of the countries who are signatories to The Hague and European Convention on Child Abduction those countries will give full co-operation to make sure that the child or children are returned to the parent still residing in England.

However, things can become particularly tricky if a parent relocates with his or her children, without permission, to a country which isn’t a signatory of the Convention on Child Abduction and it can be an extremely costly, confusing and very traumatic experience for the parent attempting to get his or her children back, especially when it comes to initiating legal proceedings in a foreign country.

Historically, there was a presumption that children would move abroad with their mother if she was a foreign national wishing to go back to her home country, but a recent Court of Appeal decision has stressed that the welfare of the children is paramount and that each case needs to be determined on it’s own merits.

What factors do the court take into account if there is a court dispute over child residence or contact?

If negotiations over child residence or contact via family solicitors or direct fail, then the may be no other option than to proceed via the court system. For example, where a non resident parent considers that the resident parent has become unfit to care for the children or where they wish to have the children reside with them, they may consider applying for a residence order themselves, but the court will take in to account the following factors to ensure that the child’s best interests are at the forefront of any decision:

(a)the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b)his physical, emotional and educational needs;

(c)the likely effect on him of any change in his circumstances;

(d)his age, sex, background and any characteristics of his which the court considers relevant;

(e)any harm which he has suffered or is at risk of suffering;

(f)how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g)the range of powers available to the court under this Act in the proceedings in question.

This is called the welfare checklist and is governed by section 1 of the children act 1989. A court will have regard to this when a party applies for any order involving a child of the family. Such order could include a residence or contact order, as detailed above, a prohibited steps order, where one party wishes to prevent the other from taking certain actions in relation to the child, or a specific issues order. This type of order is usually made when the parties cannot agree on the course of action to be taken as to a certain issue, such as the schooling of the child or the medical needs of the child.

Another order that may be made is a parental responsibility order, which is an order to give parental responsibility to a person, who has not acquired this automatically. If a resident parent is worried about the threat of violence or harassment from the other party, they may wish to apply for a non molestation order, this would cover the resident parent as well as the children of the family.

For any other family law enquiries, Darlingtons Solicitors can help.