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When couples separate and divorce, they often have to try and unravel their financial affairs, which in some cases can have been tied together for many years.
There are many “urban myths” around finances and divorce, and the reality is that each case is judged on its own facts. Please call us on 01484 538421 for more information.
To get a case to Court, a couple have to have attended a Mediation Information and Assessment Meeting (MIAM). The person who wants to initiate the discussions would have to contact a local mediator, who would set up (usually) a separate appointment for both spouses. The mediator will use this opportunity to explain to each spouse about how mediation can help them resolve issues. The mediator will also explain how mediation works. The mediator will also assess if the case is suitable for mediation. If it is, the mediator will set up a joint meeting. At that meeting it’s really important for couples to bring as much financial documentation with them as possible, for the meeting to be of benefit to them both. The mediator will then work through each of the assets, and liabilities, so the couple have a picture of what assets they have available, and what debts need to be met. The mediator will then assist them in trying to reach a mutual settlement. This takes work and compromise on both sides and can be really difficult for both. However, it is worth it. It takes far less time, and costs far less money.
Often clients find it very difficult to negotiate between themselves. This is understandable, given the emotional impact of the discussions. Solicitors, contrary to popular belief, do their best to try and assist clients in resolving disputes on an amicable basis. At Familyfirst, Vicky and Johanna are Resolution members, which means that they sign up to a code of conduct which means that they do their utmost to try and resolve disputes in a non-confrontational way. You can find out more about the Resolution code of conduct at http://www.resolution.org.uk/code/
Solicitors can exchange financial disclosure, and then exchange offers. If those offers are reasonably close together further negotiations can take place. Whilst correspondence is an option, setting up round table meetings is another way that solicitors can assist. A meeting would be set up for you, your spouse and the solicitors. Usually a separate room is free, to enable you to discuss proposals with your solicitor.
Here at Familyfirst, Vicky Medd is a collaboratively trained solicitor. Engaging the collaborative process means that yourself and your spouse will both instruct collaboratively trained solicitors. You will both sign an agreement that means that your solicitor will assist you in resolving the dispute amicably, and that if you are unable to resolve amicably, then you will have to get a new solicitor. This means that both of you are more invested in the outcome succeeding. Initially you will meet with your solicitor, who will discuss your case with you. The solicitor will then have a meeting, or call with the other solicitor, and a meeting with all four of you will be set up.
This is an especially valuable process for clients who feel too vulnerable to make decisions in mediation, but who want to try and resolve matters amicably. At the end of the meetings, if an agreement can be reached a draft order can be prepared, and sent to court for approval.
For more information about the collaborative process, please ring Vicky Medd on 01484 538421
Family Arbitration is a relatively new process, and involves you and your spouse paying an arbitrator to make decisions about finances when you cannot agree. The advantage is that you are paying for someone to judge your case, without having to jump through the hoops that the Court process involves. This can mean that your case is resolved more quickly and more cheaply than litigating through the courts. Both of you have to sign an agreement to say that you will be bound by the arbitrator’s decision, whether that is for or against you, and Courts do uphold arbitrators’ decisions.
Where mediation has been attempted, or the other person turns up, and solicitor negotiation, collaborative law has broken down, then a Court application has to be made.
Once issued, the Court will allot a hearing within 3 months. During that time, both clients have to prepare a Form E, which is a financial statement.
The first hearing is generally a directions appointment, where the Court make directions about how the case will be dealt with.
The next court hearing is usually a Financial Dispute Resolution Appointment, where the Judge hears from both sides about what they are seeking, and gives an indication of what they would do at a final hearing.
If this can not resolve the dispute, the case is listed for a final hearing, where enough court time is set aside to enable both clients to give their evidence, and for the Judge to make a decision.
Generally the Court process takes about 1 year, although it can be slower or quicker, depending upon the assets involved, and whether there is a complicated issue of law.
To find out more, please telephone our team on 01484 538421
You do not have to have a solicitor, but it is recommended that you obtain some legal advice throughout the process. Financial applications can be complex, and it is strongly recommended that you seek advice, but you can conduct the proceedings on your own.
This depends very much upon the circumstances of the case. If it is possible that mediation will assist you, generally such cases take approximately 3 or 4 months, but could take less time, or longer depending upon the complexity of the case, and finances involved. If the case is going to go to court, from the date of issue, it will be 3 months before the first appointment. Again, the average time is around a year if it goes from issue up to a final hearing, but it could take longer or less time depending upon the availability of Judges, the complexity of the finances, how quick each person is to respond to orders etc.
Costs vary significantly, depending upon where you live, what assets you have, and how co-operative the other person is. Financial proceedings are costly, so it is better if you can agree between you.
The Court has a choice of four ways in which to deal with pensions:-
- Do nothing
- Making a pension sharing order, which means that the pension company would have to pay a specified percentage of the pension to the other person. That person would need the advice of a financial adviser, as pensions is a difficult area, and that sort of advice is outside the remit of a solicitor.
- Making a pension attachment order – this is where part of one person’s pension is, at the point of pay, sent by the pension company to the other person.
- Offsetting the other assets against the pension – this means that one person may get more of the other assets, if the pension of the other is left in tact.
The costs of implementing a pension sharing or attachment order varies from pension company to pension company, but is usually around about £750 to £1,000.
For more information, please ring us and book your first appointment on 01484 538421
Under s.25 Matrimonial Causes Act 1973, the Court has to take into account the following:-
(a)the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
(b)the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
(c)the standard of living enjoyed by the family before the breakdown of the marriage;
(d)the age of each party to the marriage and the duration of the marriage;
(e)any physical or mental disability of either of the parties to the marriage;
(f)the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
(g)the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
(h)in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring
In most cases the Court are looking predominantly at what most people need and they work back from there.
The Court will only tend to take conduct into account when it is financial conduct that it can not overlook, or when the behaviour is so bad it would be “inequitable” of the Court to disregard it. In terms of financial conduct, the sort of example where a court may take the conduct into account is where one person, after separation, has built up a large overdraft on a joint account, for the sole purpose of the other person having to pay it back. In terms of other conduct, this has to be really extreme, and is very rarely granted. This can be very difficult for people to come to terms with, but the purpose of the Court in sorting out finances is not to punish, but to try and decide what is fair, and what both people can live with.
Financial proceedings costs
Financial proceedings can be costly within divorce, and the amount of work that we need to do on your behalf will vary, depending upon the stage that your case has reached, and how much animosity there is between you and your ex. The more animosity, we find the more a case costs.