Disability, money and divorce
Some would say that marriage vows are made ’’in sickness and in health’’ but sometimes that just is not possible and it is better for the whole family that a separation takes place.
The top London divorce solicitors say that if you are disabled and facing a separation or if you are thinking about divorcing your disabled husband or wife, it is vital that you get expert legal advice on your options. That is because with extra practical support or through talking about the marital difficulties with a Relate counsellor you may be able to sort things out. If not, it is important to get legal advice so that you know what your options are.
How can OTS Solicitors help?
Divorce is stressful, whatever your personal or financial circumstances but it can be particularly complex if one of you has a disability. The family law team at central London based OTS Solicitors provide caring professional advice on divorce proceedings, financial settlement options as well as preparing prenuptial and relationship agreements.
For pragmatic expert advice on your financial settlement options or for representation in financial court proceedings please call OTS Solicitors on 0203 959 9123 for a confidential discussion about how the divorce and family finance team at OTS Solicitors can help you.
Divorce and disability
Many spouses do not view their disability or that of their spouse as a significant issue in the divorce proceedings. However, the best London divorce solicitors say that a disability can have a significant impact on any financial settlement.
The extent to which a financial settlement may be effected by a disability will very much depend on the nature of the disability and the prognosis in the short, medium and long term.
The top London divorce solicitors recognise that in some marriages a husband or wife may provide a lot of support, for example, being the main carer for the children or providing the money, as the sole or main breadwinner, to help financially support the family.
According to the best London divorce solicitors it is important to look at how much help and support is provided so you can assess what long term support is required to help meet disability needs after the separation. Over time, the level of support may change, depending on the prognosis. The cost of help may vary drastically depending on whether family help is available or if paid professional help will be necessary.
Divorce and disability – getting the evidence
If a husband and wife cannot agree on whether a spouse has a medical condition, and if so, the prognosis for the condition and the current and potential future impact on the spouse’s ability to work or professional care needs then a medical report can be ordered by a judge within financial court proceedings.
The best London divorce solicitors say that the person who has the disability cannot be forced to participate in a medical for the purposes of a court report. However, if they do not do so then there may be no independent medical evidence of their condition and its impact on their daily lives and earnings capacity.
The top London divorce solicitors recommend that if a disability is limiting that, in appropriate cases, a specialist report from an occupational therapist is obtained to highlight the services required to help the spouse and the costs of obtaining the extra help. Without a specialist report, it could be difficult to persuade a judge that a spouse’s income or capital needs are a lot higher than the non-disabled husband or wife because of their specialist care needs and non-existent or limited earnings capacity.
Divorce and disability – spousal maintenance
Where a husband or wife suffers from a disability that either affects their earnings capacity or increases their reasonable income needs it may be necessary to look at whether spousal maintenance is justified and, if so for how long and how much.
The top London divorce solicitors say that it is not just the case of looking at the disabled spouse’s income needs to meet the cost of their disability. Consideration has to be given to the ability of the other spouse to pay spousal maintenance (and child support if relevant) and meet their own reasonable needs. Other factors are also relevant such as the length of the marriage.
Divorce and disability – capital provision
The court will normally start from the basis that assets from a marriage should be divided equally between a husband and wife. However, the best London divorce solicitors advise that the court has to consider the factors listed in section 25 of the Matrimonial Causes Act 1973 when making a financial court order. These factors include:
- The income, earnings capacity, property and other financial resources which the husband and wife has or are likely to have or could reasonably be expected to have in the foreseeable future; and
- The financial needs, obligations and responsibilities of the husband and wife; and
- The standard of living enjoyed by the family during the marriage ; and
- The husband and wife’s age and the length of the marriage including any period of pre-marriage cohabitation; and
- Any physical or mental disability of either the husband or wife; and
- Any contributions made by either the husband or wife to the welfare of the family; and
- The conduct of either the husband or wife to the extent that it is relevant to the financial court application .The family court will only rarely decide that conduct is of relevance to the amount of the financial award;
- The value of any benefit that either the husband or wife will lose because of the divorce, for example pension provision.
Top London divorce solicitors say the section 25 checklist of factors have to be carefully considered in the context of the individual personal and financial circumstances of a husband and wife.
If a spouse has an illness that affects their capital needs, and for example:
- Needs more than half the assets in order to buy a suitable bungalow or apartment;
- Needs extra cash to pay for an adapted car or other equipment.
Then the court will consider the spouse’s need for more than half the capital assets. If the court thinks that a departure from an equal split of assets is justified then the court can make a financial court order that reflects the disabled spouse’s capital needs.
How can OTS Solicitors help?
If you are going through a separation or divorce, it can be a painful and stressful time, particularly if you are also struggling with a disability or looking after a disabled spouse.
The family law team at central London based OTS Solicitors provide caring professional advice on divorce proceedings, financial settlement options as well as helping prepare prenuptial and relationship agreements to protect personal injury awards.
For pragmatic expert advice on your financial settlement options or representation in financial court proceedings please call OTS Solicitors on 0203 959 9123 for a confidential discussion about how the divorce and family finance team at OTS Solicitors can help you.