Separation Agreement

I am new to this and have not posted before, so not sure if I am asking this in the right place. I am separating but currently still living in the MH. I am wanting to move out with 2 children and have found somewhere to rent that keeps children at schools and in same area. We have a property overseas that I wish to retain as part of my settlement and use rental income from that to fund property here for me and kids. Looking for husband to support kids only. I could not afford to keep MH anyway and would have to sell, by which point may have lost rental option and would have to move kids, probably out of area. I do not want to do that. Also, if I stayed in MH, I would be reliant on x2b for full financial support. Again, not a situation I want to be in. My question is, to me my preferred option, provides me with a 'Clean Break', am I right in thinking that in Scotland, that would be the courts preferred option too? Also, what is regarded as an appropriate division of asset values. I am giving up considerable income from joint business. The net income from rental property is less than the personal tax allowance, but x2b trying to argue that I have 'economic advantage' by retaining that property. Is that a fair argument? Sorry if this is posted in wrong area.

Hi fabmum

welcome to wiki


There are four steps which should be considered before making a decision about the financial arrangements. Please note that matrimonial property is that which is accrued between the date of marriage and the date of separation.

1. Establishing the date of separation on which the married couple cease to cohabit as man and wife.

2. Identifying all the assets owned jointly or individually by a couple at the separation date including the house, furnishings, a car, pensions, savings and investments and any outstanding liabilities (mortgage, car finance, personal loans, credit card debts etc) in existence on the date of separation.

3. Determining any non matrimonial property by looking at the individual assets and seeing the circumstances in which they were acquired. Assets owned by either party before the marriage or those gifted or inherited are not matrimonial property.

4. Valuing matrimonial assets as at the date of separation, for example, by providing statements for savings, asking insurance companies for surrender valuations of endowments and pension providers for the Cash Equivalent Transfer Value. Endowment policies and pensions started before marriage are apportioned for the years of the marriage. It's best to have agreement before having the house valued by a Chartered Surveyor. The liabilities are deducted from the assets to provide the net value of matrimonial property.


Scottish Divorce law underpins the "clean break" premise when it comes to financial agreements - and these are usually accounted for in capital, although when there isn't sufficient capital deferred lump sum payments are a possibility. The matrimonial assets are usually determined at the time of separation- anything acquired after that date is not usually counted as a matrimonial asset. Bank and savings accounts, whether they are in joint names or not, are also counted as matrimonial assets. It is only the pension/s accrued during the length of the marriage that is relevant. It is very rare that a court will decide the asset split and financial arrangements - only about 3% of cases are decided in court, the majority are haggled out via the solicitors or between the two parties.

Assets are usually split "fairly" equally between the two parties, but if you and your x2b have agreed a less equal split, and you then enter into a Separation Agreement, then that will stand - the more you can agree between yourselves, the better and more cost effective.

I think with regard to your last question, re the rental property - then yes your husband may well have a fair point, but money that is tied up in bricks and morter isnt real "cash" - and it depends on how much equity there is in that property. You could trade the rental property off against claiming any aliment?

Ruby

Thanks for the reply.

That is exactly what I am trying to do. I am not asking him to provide aliment to me, only support the kids. I am, however, looking for a slightly more than 50/50% split. If he sells the MH, then he would have liquidity too. If he chooses to keep 6 bed house for himself, then it his choice to tie up his capital in that, as it is my choice to keep mine overseas. So any idea as to what split would be considered appropriate? 52/48?, 55/45? He retains business and I am looking after kids.

I dont think you should get too bogged down with percentage splits - a fair settlement is one that both parties agree on, regardless of who gets more or less.

Thanks. I will try to look at it like that, but, it is hard when there are two opposing views of what is considered to be 'fair'.

I know

I would advise that before signing any agreement, that you at least get it checked by a solicitor before hand.