Many couples undergoing divorce or separation have difficulty agreeing on the financial terms of their divorce or separation. There is so much conflicting advice available; many well-intentioned family and friends can provide incorrect advice – and if you Google ‘what should be a fair financial settlement,’ you will likely find a plethora of conflicting answers and even more confusion. This blog discusses the mediation Birkenhead process we use to assist you in reaching a fair and satisfactory financial agreement. We know that adhering to this process works in 90% of cases.
Family law is all about ensuring that your future needs are met and that any agreement prioritises your children. Our Ultimate Guide to Financial Settlements delves deeply into the Section 25 factors that a court will consider.
Of course, you are free to agree on anything that you both believe is reasonable. However, the court must decide that you reached a fair deal for your agreement to become legally binding through a financial consent order.
A court is more likely to do so if you have made a complete financial disclosure and have sought assistance from family mediation Birkenhead or a family law solicitor.
Our blog – the 11 ways to agree – may assist in this situation. Even if you cannot reach an agreement, deciding on the method(s) by which your financial dispute will be resolved can save you considerable time, stress, and money.
One of these methods is family mediation Birkenhead. Typically, family mediation is required before filing a court application for a financial order, and a good reason! This section will walk you through the financial mediation process.
WHAT IS FINANCIAL MEDIATION, AND HOW DOES IT WORK?
FIRST STEP – MIAM
We begin by meeting with you individually. A MIAM – a Information and Assessment Meeting – is the title of this appointment. We must do this with you individually (you may bring a support person).
Our page ‘What is Family Mediation?’ illustrates the process with a flowchart.
Once both parties have completed their MIAMs, you may proceed with your financial disclosure unless an urgent and pressing matter requires mediation Birkenhead.
IMPORTANT FINANCIAL CONCERN
Particular couples may have an upcoming mortgage payment that they are confident will be missed or other pressing bills that require agreement. This is necessary before they can begin financial disclosure or agree on an asset division. If both clients agree, you may meet with your family mediator to resolve this urgent matter(s) during a joint mediation Birkenhead session.
STEP TWO – DISCLOSURE OF FINANCIAL INFORMATION
If there is no such emergency, both of you will be required to complete financial disclosure.
On your financial disclosure, you have three options.
OPTION 1 – COMPLETE DISCLOSURE OF FINANCIAL INFORMATION ON FORM E
This includes a variety of evidence, such as twelve months’ worth of bank statements. This form must be completed if you apply to the court for a financial order. In addition, both parties must sign their Form E as accurate, and providing false information on purpose may constitute fraud, which could land you in hot water if you go to court for a financial order. Form E can be viewed and downloaded here.
OPTION 2 – FORMAL DISCLOSURE
This is the option chosen by 80% of our clients. The spreadsheets contain a comprehensive financial disclosure, as required by courts and solicitors, but are less time consuming to complete than a Form E.
OPTION 3 – EXTRAORDINARY DISCLOSURE
This is the bare minimum information that must be included on Form D81. It contains totals for your real estate, investments, pensions, and debts. However, they are not decomposed. If you choose this option, you should seek legal advice regarding the potential legal consequences and sign a disclaimer.
If you cannot agree on a method of disclosure, you must default to completing a Form E, option one, as a court would require.
WHY IS A FINANCIAL DISCLOSURE REQUIRED?
If you want to end up with a legally binding agreement, you must obtain a financial consent order. This is the only way to ensure a clean break and that the agreement reached protects both parties. To get a consent order approved by the courts and cannot be later challenged or set aside, you and your spouse must complete this financial disclosure.
STEP THREE – FINANCIAL DISCLOSURE AGREEMENT
This is a critical stage in the procedure. Both parties must have made and agreed to financial disclosure, whatever method you use to reach a financial settlement. Otherwise, the court will compel you to perform one. And if they believe you are being unreasonable or obstructing the process, they can factor this into their legal cost allocation and even their judgement.
Your mediator will walk you through the financial disclosures you’ve made and ensure that you and your spouse agree on them. It isn’t easy to proceed with the mediation Birkenhead process and reach an agreement without the complete financial picture. We request that you bring all your financial information, including pension valuations, to the financial mediation Birkenhead session. This is unnecessary if you are discussing parenting issues.
STEP FOUR – DISCLOSURE EXCHANGE
Another critical component of the process is exchanging financial disclosures. This can be done before your initial joint mediation Birkenhead appointment or, more commonly, after the previous financial disclosure session. The mediator will not analyse your financial disclosures or retain copies of your evidence, such as bank statements. However, they will keep track of the data exchanged between you.
Financial disclosure before your first joint mediation Birkenhead session enables you to seek legal advice, which may benefit your particular situation. If not, you may consult this advice between subsequent sessions if you need legal guidance.
STEP FIVE – HOW ARE OUR ASSETS AND DEBTS DIVIDED?
This is the point at which the following question must be addressed:
“How do we fairly divide our assets and debts to continue living our lives while meeting our reasonable future needs?”
Suppose you can work cooperatively with your mediator to resolve this issue. In that case, you have a much better chance of reaching a fair, reasonable, and manageable agreement than if you try to think, “how can I get the most out of this situation?” Family law categorically opposes the latter question.
Your mediator will assist you in determining your needs and how they can be met with the assets at hand. The table below may assist you in deciding which factors are generally considered and which are not by a court when reaching an agreement.
Don’t forget to refer to the ‘Ultimate Guide to a Financial Settlement,’ which discusses these factors in greater detail.
WHICH ARE MY REASONABLE REQUIREMENTS?
For many clients, the need to fund two households, when previously only one was required, is the primary issue that you and your client must resolve. Consider our blog on the ten options for property division during a divorce or separation; it may provide you with some ideas you hadn’t considered.
Investigate online house-moving platforms to determine the cost of a house in the area you wish to live in to meet your reasonable living needs.
Determine your mortgage capacity using your current or anticipated income. How much money are you able to borrow? And what are the monthly mortgage payments going to be? Are you able to maximise your revenue when you live separately? You may be eligible for additional assistance through universal credit or a council tax reduction. The calculator on this page can assist you in determining whether you qualify for further aid with your monthly budget.
SIXTH STEP – CAN THIS BE AFFORDED? Spousal maintenance is required.
Validating the agreement and determining whether any ongoing payments are necessary between the couple is critical to the financial settlement. It demonstrates to the court that you have considered your own and the children’s future needs. Spousal maintenance may apply in this case – but keep in mind that you cannot obtain a clean break if a spousal maintenance order is in place. For more information on how this works and the option of capitalising (paying spousal maintenance in one lump sum), read our ‘Ultimate Guide to Spousal Maintenance’.
You may also need to consider child support if you have children, depending on the child custody arrangements agreed upon and the children’s ages.
Both parties should budget for the future and agree on a reasonable amount. While child maintenance is often mandatory, the issue of spousal maintenance should become apparent after you and your spouse have completed this exercise.
STEP SEVEN – DOCUMENTATION AND LEGAL ADVICE
After you and your family mediator have reached an agreement, your family mediator will draught two documents for you:
A financial statement that is admissible in court. The financial information summarises your current assets, liabilities, and income.
A memorandum of agreement. The memorandum details the distribution of these assets and any ongoing payments.
At this stage, the memorandum is not legally binding. However, you may submit it to your solicitor for review or utilise our one-hour memorandum legal check, including a written report of your legal advice.
Minor changes can be agreed upon between you and the mediator, and the mediator can correct any typos. Still, any significant changes must be agreed upon during another joint mediation session.
Once both parties are satisfied with the memorandum, you can move on to the final step.
STEP EIGHT – IMPLEMENT LEGAL BINDINGNESS INTO YOUR AGREEMENT
Once an agreement is reached, it can be enacted without legally binding. However, many people desire the security of a financial consent order in the event of divorce or a separation agreement if they are not married or intend to divorce in the future. See our ‘ Ultimate Guide to a Separation Agreement for more information on what this does and does not allow.
For many people, obtaining a financial consent order is the only way to ensure a legally binding financial agreement and, if agreed upon, a clean financial break with their ex-spouse.
A financial consent order may be obtained in one of three ways:
Order Consent Online. Divorce Online can convert your agreement into a legally enforceable consent order.
We offer a fixed-fee package that includes mediation and consent orders. It consists of all mediation sessions, your memorandum, and a solicitor to manage your consent order with the court in an amicable manner.
Utilise Your Attorney. They can draught the order and communicate with the court on your behalf. You may also retain the services of a solicitor to advise you on the contents of the order.
While there are various options available to accommodate varying budgets and degrees of agreement complexity, the actual drafting and processing of the consent order should always be handled by a family solicitor.
However, it is in reaching your agreement that the actual value is found. For example, suppose you cannot get a fair deal through family mediation Birkenhead or another alternative dispute resolution process. In that case, you may find yourself in court and paying substantial solicitor and legal fees before a judge decides what will happen.
This blog walks you through the mediation Birkenhead process to reach a fair agreement and provides some guidance on the factors to consider when agreeing on your futures; however, it does not constitute legal advice. We always recommend seeking independent legal advice before, during, or after mediation.