Midlife Divorce & Separation - Overview
Separation and divorce for the over fifties (midlife), what you need to know and how mediation can help.
The main differences between divorcing when you are young or when you are older
• There is less recovery time between the divorce and retirement. Rebuilding assets and re-paying mortgages may be a problem. There may not be 25 years to repay your mortgage, there may only be ten or even less. Arrangements have to be practical.
• Pensions are far more likely to be a consideration as people need to think about their income in retirement. Pensions are more likely to have significant value for older couples. Also, the older you are the more likely you are to have extra valuable final salary pensions schemes which may need actuarial input to help you work out to do in relation both to other assets and other pensions. Our lawyer mediators are accustomed to helping couples with pension issues, including working with actuaries and financial advisers where this will be helpful.
• It may take you a bit longer than when you were young to ‘bounce back.’ You’ll get there – you may have to work harder at it
• Your children are more likely to be adult, which simplifies many aspects relating to them – but adult children can still have a bad reaction to parental divorce. Try and help them to maintain a relationship with you both.
Separation when you have not been married: this is relatively simple, if potentially harsh and a legal minefield. There is no such thing as Common Law marriage. On separation, assuming there are no minor children, the couple has no rights against each other apart from those you might have with anyone with whom you share a bank account or co-own a property. To coin a phrase ‘A discarded lover has no legal rights.’ Shared half your life with someone who owns the lot? Very likely your reward will be nothing. There are some complex and fraught possibilities using the Law of Equity, Resulting and Constructive Trusts and Equitable Estoppel – but you might have more fun and success in a casino. Take legal advice as to your legal rights and sort it out in mediation if you possibly can – keeping costs down is advisable.
Divorce in middle age and later life: here the outcome depends on your circumstances we have a discretionary system – so if you’re divorcing after a long marriage, say over twenty years or so, after rearing a family together, then the likely starting point is an equal division of the assets with reasons being needed to depart from that. If you’re divorcing after a shorter and or subsequent marriage and have had no children together you may have a Pre or Post Nuptual Agreement
Pre or Post Nuptual Agreement. This would be persuasive as to who has what. The Pre/Post Nup must meet the legal requirements for it to be valid which are:
• each of you must have had separate legal advice,
• there must have been no duress,
• it can’t have been made too close to the marriage or sprung on someone at the last minute,
• it must be fair and not oppressive and
• the assets must have been fully disclosed.
If the Pre/post nup meets legal requirements then it is quite likely to be upheld by the courts which means it is very persuasive in any settlement negotiations whether in mediation or via lawyers. We are able to help you mediate pre and post nuptual terms.
The General Divorce Law governing who has what financially is set out in statute as interpreted by case-law. We have a discretionary system, but boundaried by some well understood rules. Mostly there is no pre or post nuptial agreement and we fall back on the general divorce law – whether sorting things out in court, via lawyers or in mediation. In mediation you come together (though you are not necessarily always in the same room) and a mediator can give you neutral legal information and can help you work out what your assets are worth and helps you agree who should have what. As you share the mediator’s fees and as everything is done face to face at mediation sessions, matters are normally resolved much faster than through litigation, so you save money. You can still have separate advice from your lawyers, but most of the work is done at shared expense in mediation.
The golden yardstick - a critical factor for most couples –is the costs of divorcing and settling your financial agreement. This largely depends on you and the resolution process you choose. Anyone divorcing – at whatever age or stage should quantify the value of their total assets, sometimes referred to as the ‘Matrimonial Pot.’ You should monitor your total costs for the divorce and settlement process. Most people are arguing over less than 10- 20% of their matrimonial pot. Why spend that much or more on the process of sorting out the split? It is disproportionate and you are wise to keep an eye on the relationship the total costs bear to the matrimonial pot. Even the Court Rules say this – though it mostly ignored. If costs are approaching 10-20% then mediation is a good idea, as it can resolve things fast and stop costs mounting. Best avoid becoming one of those cases where the costs are more than the value of the difference between you. Buying homes is more important.
At any age avoid fighting because you are angry and upset: focus on what is important to you, on your future. Revenge and instinctive fighting are human reactions to family breakdown, but the commonest outlet for this is litigation, which locks couples into their conflict with ritualised adversarial procedures that are expensive, costly and stressful.
Mediation: at any age or stage it is never too late for an outbreak of sanity. Mediators are trained to help you resolve issues so you can live life again. Mediation can be used right at the start to agree everything – or just before a trial to avoid the costs and uncertainty of court. You can come with your lawyers for a day and mediate a binding agreement that day or for you can come for a series of sessions without your lawyers and mediate a deal lawyers can make binding in a Consent Order. You can come for a MIAMs (Mediation Intake Assessment Meeting) at any time and find out how we can help.