The 8 Most Important Considerations When You Consider Divorce by Breakup Angels' expert Kirsten Gronning, in collaboration with family lawyer Deborah Levy.
When I divorced seven years ago I had to bite the bullet. By this time it had already taken me three years and three attempts at serving the divorce petition (and retracting it twice) before I got to the stage when I absolutely knew I had to go ahead. There was a little on-line help at that time, but I recall feeling embarrassed about looking for it! I sought out books on divorce, finding surprisingly few and struggled to find the answers I needed. The whole process seemed so complicated.
What has really changed in those seven years is the sheer volume of information and help on-line and face-to-face. I am constantly amazed at the quantity - and indeed the quality -of the information on sites like Wikivorce.com. In my opinion, the best are run by people who have been through it themselves and know what it takes to get through, but they also have on the ‘team’ professionals (including lawyers) who aim to keep viewers out of court.
It's difficult to make sense of relationship breakdown when it’s you in the middle of it, let alone make any progress when emotions run high. But there comes a point when on-line help only goes so far, and many of us wish to speak to experts face-to-face in order to make some sense of the mayhem.
In order to provide much needed, face-to-face help and advice, Breakup Angels is re-launching workshops in London in 2010 at the Institute of Family Therapy (IFT) in London with the help of a number of other breakup experts including divorce lawyer Deborah Levy. Called the Breaking up in Hard Times - What are your Options? Workshop we will be providing a safe place to find out about a range of issues from tips to uncover whether a relationship is really over; how to achieve a low cost settlement and moving on afterwards with a range of emotional, legal and financial issues in between. Over the last two years I have already run five successful workshops in London called ‘The One-Stop Divorce Workshop’ where I brought together divorce experts to advise on best solutions and enable delegates to learn and participate in a relationship breakdown and divorce workshop. By offering these workshops again – this time on a weekday evening at the IFT, again with breakup experts giving up their own time - we can offer short workshops at sensible prices. It needs only 3 hours of your time to meet the people who can answer some of your most difficult to answer questions.
If you are in a tense, stressful situation and would like to find some solid ground under your feet (and can travel to London NW1) we can help you see more clearly, even the complicated legal and financial issues. To explain how, I asked Deborah Levy* Partner and Head of Matrimonial Department at WGS Solicitors in central London to explain why breaking up can’t be simpler? Why is divorce such a maze and why are there so many pitfalls? Is there a proper etiquette to separating couples instructing their solicitor, or should they do it themselves?
Deborah says “There really is no magic in understanding the divorce laws in the jurisdiction of England and Wales and if you keep focused, apart from the pain and trauma (for which I also have certain tips and advice) it is possible to keep the process relatively simple”.
These are Deborah’s 8 Most Important Considerations if considering Divorce:
1. Do you need to Divorce?
The first decision you will need to make is whether you want to (and indeed need to) legally bring the marriage to an end. You and your spouse could choose to live separate and apart without necessarily addressing financial issues; agree to deal with them at some later stage; embody terms which you have agreed in a Separation Agreement or apply to the Court for a Decree of Judicial Separation - this latter option is often used by those who object to a divorce on religious grounds. A Decree of Judicial Separation gives the Court power to deal with the financial consequences of the separation save for in relation to dividing pensions.
Although I have written this article to assist those undergoing separation/divorce with a view to giving tips on how to keep their costs under control, the decision whether to divorce or postpone the decision to do so (if at all) certainly can have a significant impact on finances and therefore on this issue seeking sound legal advice would be an investment which is well worth making in terms of time and the money spent.
Don’t automatically think just because the relationship is at an end this must mean you have to get divorced - it may not be in your best interests to do so.
2. If you DO decide a Divorce is the right option for you (or you have little choice in the matter) how will you go about it?
As most readers will be aware, there is only one ground for divorce, namely irretrievable breakdown of the marriage. This must be proved by one of five facts:
• That the other party has committed adultery and the Petitioner finds it intolerable to live with his or her spouse;
• The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with him/her;
• The Respondent has deserted the Petitioner for a period of two years or more;
• The Petitioner and the Respondent have lived apart for two years and the Respondent consents to the divorce;
• The Petitioner and the Respondent have lived apart for a period of five years or more.
Whichever ground(s) is available to you, or if you are at the receiving end of a Petition based on one or more of these facts, there is very little point in getting hung up as to the basis for the divorce, it will only cause more pain and heartache and certainly substantially more in costs. Your solicitor can protect you by confirming (if you are the receiving party) that an admission on your part is being made strictly on the basis that it will have no consequences in relation to finances and/or issues relating to the children and that any facts as stated are not admitted, they simply assist in processing the divorce.
3. What will it cost to Divorce?
You and/or your solicitor should negotiate that the costs of the divorce itself are shared. Ordinarily, in what is known as ‘the fault based’ categories i.e. adultery/unreasonable behaviour, the Respondent pays the cost of the divorce. However, in order to try and keep matters amicable and on account of the fact that even if one secures an Order that the other party pays the costs of the divorce it can be costly to pursue recovery and/or enforcement in relation to the other party paying the costs of the divorce, it is therefore usually (but not in all cases) much better to try and agree a fixed equal contribution which is likely to guarantee that payment is made.
Spend as little time, money and energy on the issues relating to the divorce, subject to receiving advice as to whether it is appropriate to bring about the end of the marriage or not. In relation to the emotional issues, it makes economic and psychological sense to consult a counsellor or therapist to support you in what is one of the most stressful life events.
A counsellor or therapist’s fees are significantly less than that of a solicitor and having emotional support at this time can be invaluable.
4. How will the Finances be split on Divorce?
It is very important to bear in mind that since the case of White v White in 2000, there is a general principle of equality which means that one needs to look at the assets built up during the marriage, particularly the matrimonial home and give consideration to an equal division save where there are good reasons to depart from this.
The criteria which govern the Court’s discretion to depart from equality are set out in section 25(2) of the Matrimonial Causes Act 1973 which can be viewed here and readers can glance over to the extent and depth they might wish to. Bear in mind that when the Court decides what Financial Orders to make, the first consideration is ‘the welfare, while a minor of any child of the family who has not attained the age of 18’ - in other words the needs of children take priority over everything else. In brief, the factors will be:
• Income (this includes earning capacity) i.e. what either party can reasonably be expected to earn.
• Standard of living (often the same standard of living cannot be maintained by two households).
• The age of each party and the length of marriage.
• Any physical or mental disability.
• The conduct of each of the parties (very rarely taken into account).
Remember, that the Court has a very wide discretion and there is no ‘one size fits all’ solution - this has advantages and disadvantages in terms of negotiating power and the ability or otherwise to try and reach one’s own agreement and disadvantages in terms of uncertainty and increasing costs when parties are unable to reach agreement. Whether you might be able to reach agreement with your spouse or not, again, an early consultation with a solicitor of your choice (see below) is crucial.
5. How to make best use of that first Meeting with your Solicitor?
The first consideration is how to choose a solicitor who will best suit your needs. Personal recommendation is always preferable - ask around, friends, family, your hairdresser, accountant, bank manager and then research a little about the potential solicitors of your choice. Are they members of Resolution www.resolution.org.uk - an organisation of family lawyers who seek to promote dealing with matters fairly? Resolution supports the development of family lawyers through its training programmes and also continually educates Resolution family lawyers who believe in a constructive, non-confrontational approach to family law matters.
You will need to feel that your solicitor is right for you. Telephone and/or email him/her to suss out the chemistry between you. Here are some tips:
• It will be important that you can work together as a team and that you will be able to build up trust. If your gut feeling tells you otherwise then the solicitor is unlikely to be the right one for you - on the other hand if you feel that you could work with this person, arrange an initial appointment.
• Most solicitors will charge for the first appointment if they are giving detailed, even if overall general advice to you, but you may be able to persuade the solicitor to offer the first 15/20 minutes free of charge so that you can ascertain whether he/she is the right one for you.
• In order to conserve costs, you should bring with you to the first meeting a schedule of all of the assets of which you are aware, whether in joint or sole names together with details of debts (including any mortgage) and details of your and your spouse’s income (to the best of your knowledge). If you have the chance to email this to your solicitor in advance of the meeting that is also likely to cut down on costs.
• Bring a notebook to make notes and reconfirm back to the solicitor your understanding of what he/she has explained - this should cut down on the need to have the advice confirmed to you in writing.
• You should discuss the various options as to how best to resolve your matter. Will it be via mediation, collaborative family law, or voluntary disclosure/correspondence? Or perhaps it would it be in your best interest to make an application to Court to impose a tight timetable and the Court’s powers, which may be required to compel your spouse to produce documents/bring pressure to bear to reach an early resolution with negotiations proceeding alongside the Court process?
• Once you have reached the decision as to which solicitor you will instruct, you need to keep a tight control of time and costs and ensure that you are informed (as solicitors are obliged to) of the costs which are likely to be incurred and which are being incurred on a regular basis.
• Do not spend hours on the telephone when succinct emails are likely to cut down both your and particularly the solicitor’s time and consideration of the issues and giving advice to you.
• Remember that you are the client and the solicitor will act on your instructions although you should not be shy to seek advice as to your options, the consequences of which course you choose to adopt and what the solicitor considers is likely to be best for you.
As finances progress, you must be very organised yourself:
• You should run a contemporaneous file of the correspondence you receive from your solicitor and a separate, preferably lever arch file in relation to your documents with dividers separating out various elements of documentation.
• Be clear as to what your solicitor will require of you and by when.
• Keep your solicitor informed if there are any difficulties in your obtaining various documents and seek advice as to what you should do in those circumstances.
• You will be required to provide details as to your current and future estimated budget. Keep a daily record of your expenditure so that you can gain a better insight as to what it is likely to cost you to maintain yourself (and any children) both now and in the future.
6. And the Children?
There are a whole range of Orders which the Court is able to make in terms of:
• With whom the children will live;
• How frequently the children will have contact with the parent with whom they do not live (the non-resident parent.)
The more you are able to agree with your spouse, the better it is likely to be - whether you are the resident or non-resident parent. In my view, the Courts are the place of last resort in relation to children’s matters and if there are issues it is far better to try to resolve these in mediation or with a Family Therapist or Family Consultant if possible. I firmly believe - and research has confirmed this - that agreements reached between the parties are more likely to be adhered to when it comes to children although that is not to say that if it does become necessary to make an application to Court you should not hesitate to invoke the Court’s power. For example, if there is a real risk of a child being abducted or not returned at the end of a contact session.
7. When and why do I need Emotional Support?
Your solicitor is there to give clear legal advice throughout the process and of course to be supportive.
However there are now many counsellors, family therapists and family consultants - and indeed divorce support groups - out there who are able to offer ongoing emotional support which a solicitor is not necessarily specifically trained to provide. This is going to be more cost effective than running up large legal bills on discussing the emotional impact of what is one of the most stressful life events that you are likely to experience. Often a solicitor can make a recommendation to an individual or group he/she knows would be able to support you in tandem with the ongoing legal process.
8. What about the Future?
Remember that if your soon to be former spouse/partner is the father or mother of your children, whilst you will need to approach resolution of (in particular) financial issues vigorously, you should bear in the back of your mind that it is likely that you will need to have an ongoing relationship with this person in the future.
• Approach your matter at all times with dignity and as best you can, with consideration for the other person.
• It is unlikely that everything will go your way and there is likely to have to be concessions on both sides to achieve resolution sooner, rather than later.
• You want to be able to look back and know that you did the best you could both for yourself and any children you have in a way that you can be proud of.
*Family lawyer Deborah Levy will be continuing the ‘Keeping It Simple’ theme at the Breaking Up in Hard Times - What are your Options? Evening Workshops in London in 2010 with breakup experts including a family lawyer, family mediator, family consultant and financial consultant we will be providing a safe place to find out about a range of issues from tips to uncover whether a relationship is really over; how to achieve a low cost settlement and moving on afterwards with a range of emotional, legal and financial issues in between. Click here to view the next dates.