One of the common issues to resolve when separating or divorcing is how money and property should be dealt with. From a purely financial point of view it is always best if you can agree how to divide things up as going to a lawyer will be hugely expensive. In many cases people end up at a lawyer’s office because they have unrealistic ideas of how things should be dealt with or have heard anecdotal evidence from friends, the press or the internet. If some time is taken to look at how the law in Scotland actually works then a lot of money can be saved and a lot of stress avoided. Most contested cases are based on one or both of a couple of myths.
The most common myth about money is the advice to take him/her for every penny they’ve got. That simply does not and cannot happen. In Scotland, finances are divided between a couple fairly. In most cases fairly means equally or 50/50 unless there are special circumstances. While you are free to agree any proportion for sharing the property that you like, in most cases it should be 50/50. You may have a friend who “got the lot”. This will not have been because the law says they were entitled to the lot but maybe the other spouse agreed to this because of the children or because they felt guilty about causing the marriage to end. If you think that you can go to court and take your spouse for every penny they have then you will be sorely disappointed and considerably poorer at the end.
The second myth is that the “guilty” party will be punished financially for causing the breakdown of the marriage. Not in Scotland. Our law specifically states that conduct will not be taken into account in deciding what is fair unless it would be “manifestly inequitable” not to. So, an adulterer will not get less than they should because they committed adultery. However, a spouse who gambled the family’s life savings on the 2.30 at Ascot may well get less than half of the assets as their behaviour in losing the savings clearly reduced the amount that would have been available for dividing between them. So, unless your spouse’s conduct has adversely affected the finances it is extremely unlikely that the court will award anything other than 50/50. By the time some people realise this they have already spent thousands on legal fees.
If separating couples are able to see that these two factors are indeed myths then they may be less likely to argue unreasonably based on unrealistic expectations. Try not to waste money on unnecessary legal fees. If you can agree a fair negotiated settlement then you will save a fortune and will be well on the road to moving on with your life. Of course, if your spouse is being completely unreasonable over the finances then you should consult a lawyer and, if necessary, go to court.
When negotiating there is often the need to compromise. There is nothing wrong with that and indeed it can go a long way towards reaching a settlement. In the midst of negotiating you might get to a stage where you think you are being asked to compromise too much. This analogy might help get things into perspective. (Remember that in most cases the aim is to reach a 50/50 settlement.) Imagine your negotiations are like crossing a bridge where you start at one end of the bridge and your spouse starts at the other end. In an ideal world you both start walking towards each other, meet up at the halfway point and shake hands. Deal done! However, what if your spouse comes only so far. You have already reached the half way point but they have stopped five paces short. If you look back over your shoulder to look at how far you have come already you might take the view that you have come this far and why should you go any further. However, if, instead of looking back, you look forward it might be that you see that it will only take another five paces and you meet up. If those five paces are not such a big deal to you then you might be able to see the sense of compromising a bit further. The alternative may be court in which case you start back at the river bank on your side of the bridge and the toll for going halfway is enormous!
Of course, there may be cases where those extra five steps are way too much to take and that may not be a fair compromise. If so, then it may be that you need to see a lawyer and, if necessary, go to court.
So, try and keep a calm and clear head. Don’t let anger take over and maybe you will be able to reach a fair and reasonable settlement.