Most divorces throw up a range of issues.
* Who divorces who – and when – and how?
* What happens to the home?
* Will maintenance have to be paid – for how long?
* How are the savings and pensions shared out?
What is the best way to sort all this out? Much will depend upon how you and your spouse want to approach it. Can you sort it out together, in a constructive way, or is there so little trust that the courts have to be involved?
If you have no money and no children, you may not need as much professional help. We recommend you see a solicitor at least once to help you understand your rights and to check if you are missing anything.
If any of the questions above apply to you, you will certainly need legal advice whatever approach you take.
Traditional solicitor to solicitor negotiation
Most divorce cases are sorted out without going to court.
Traditionally, each party instructs a solicitor to explain the issues and then get the best deal for you.
What is involved
Most divorces are sorted out without a “final hearing”. See the section on finance/law. The first step in all discussions about money is “financial disclosure”. Each of you sets out in detail your financial position. The court form (form E) is often used as a checklist. It is usual to get the home valued and any other property. This is normally done through solicitors. Once your solicitor has explored your options with you, and explained how the law works, proposals will be made. Discussions will take place through a combination of:
- letters setting out proposals (it is helpful to have a detailed starting point);
- telephone discussions (these can often speed things up);
- a round-table meeting (though it is rare to have everybody sitting around the same table at the same time throughout);
- and/or a two-room meeting (this is more common, especially if discussions are tense and emotional).
If things cannot be agreed, then it may be necessary to go to Court. A district judge will then be asked to make a decision for you. If things can be agreed, then it is usual to set this out in writing, either in a separation agreement or, more usually, in a court order. If everything is agreed, it will not be necessary to go to court.
Further help
It is important to get a solicitor with whom you feel comfortable
- so that you feel in control;
- so that you understand the issues involved; and
- so that you get a clear explanation of what is involved.
There is no substitute for personal recommendations. Friends who have good experiences of their solicitors will be able to pass on their views.
Court proceedings
Sometimes there is no alternative but to go to court.
If it is not possible to agree things – usually about the home or about finance – it will be necessary to ask a judge to make a decision for you.
Court proceedings are time-consuming and expensive. They should be a last resort. See the sections on divorce and finances for the court procedures.
Many solicitors start court proceedings while trying to negotiate a settlement at the same time. This can sometimes save time and help to avoid delay. Your solicitor will discuss this you first: it is your choice.
Financial proceedings in court can take anything from six months to eighteen months. Complex cases can take longer.
Court proceedings are necessary if:
- your spouse is not giving all the financial information you need;
- there is no hope of negotiating a settlement that is fair; or
- there are complex issues that you need a court to help you with.
If there is domestic violence, or the threat of it, court proceedings will probably be necessary immediately.
If there is an international element – if divorce proceedings might be started in another country – divorce proceedings may be necessary immediately in England and Wales.
Mediation
Mediation is a different way of sorting out the issues on divorce.
It helps the divorcing couple to sort things out for themselves. Trained mediators act as informed “referees” or “umpires”. The mediator will chair the meeting between the couple. They will raise any topics they feel are necessary for discussion.
Mediation is not there to help achieve a reconciliation. It is there to sort out the issues that arise after the marriage has broken down.
Mediation can helpfully be used to sort out children’s arrangements. But it can also be used for sorting out financial issues.
Whats involved
The mediator will often see each client separately for a single meeting:
- to make sure there are no domestic violence issues;
- to understand the background; and
- to help set an agenda.
There will be a series of mediation sessions, usually lasting about an hour-and-a-half. Issues can be discussed in detail during these sessions.
It is often very helpful to have children’s issues discussed separately, away from the courts and separate to legal discussions about finance.
If finances are discussed in mediation, financial disclosure is dealt with by the mediator. This can be a much cheaper way of dealing with financial disclosure than going through solicitors.
It is important to take independent legal advice – before and during mediation. See mediation and legal advice.
Further help
The largest supplier of mediation services is the charity National Family Mediation.
Many solicitors have trained as mediators as well. Details about mediators can be obtained from Resolution by contacting info@separateddevorce.com. A fact sheet can also be found on the website www.separateddevorce.uk.
The organisation responsible for the mediation profession is the Family Mediation Council, which has replaced the UK College of Family Mediators. Their website lists both lawyer mediators and non-lawyer mediators
Collaborative law
Collaborative law is a new way of sorting out issues on divorce.
Although it is led by lawyers, it is fundamentally different to the traditional or court approaches because:
- the purpose is to find solutions that are fair for both of you;
- it is not oppositional – it does not search for the “best deal” for either of you;
- discussions take place in a series of “four-way meetings”, so there is no court preparation or unnecessary paperwork;
- it aims to establish a high degree of cooperation, which is crucial if you are parents;
- it is very often more cost effective than traditional legal involvement.
How it works
The collaborative law process has its own distinct stages:
- preliminary stages;
- the first four-way meeting; and
- subsequent four-way meetings.
Not all solicitors (even family lawyers) are trained in collaborative law.
Only those trained in collaborative law can practise, so both of you will need to select a collaborative lawyer. You can then discuss how the system works and what its advantages are. You can also discuss with your solicitor what the problems are so that he or she can discuss them in advance with the other collaborative lawyer.
First four-way meeting
Collaborative law works through a series of meetings called four-way meetings. Both spouses and their lawyers attend.
At the first four-way meeting, the lawyers will go through the ground rules for the process, set out in the participation agreement. Once everybody understands it, they sign the participation agreement as a commitment to the collaborative way of working.
In the first four-way meeting, it is then possible to set the agenda. What needs to be discussed and agreed? Often arrangements for the children are looked at as well as any pressing financial concerns and perhaps an agreement to keep the banking arrangements as they are.
Subsequent four-way meetings
Subsequent meetings may involve a look at detailed financial questions. It helps to go through the financial details face to face, asking questions as you go.
Collaborative law is a very flexible process. House valuations can be discussed and agreed quite quickly. Pensions advisers can be brought into the process, as can other professionals.
The process can be adapted to suit you and your needs. There is no unnecessary paperwork, no preparation for court and almost no correspondence.
The ultimate aim is to sort out all the issues. These would be put into an agreement or a court order in the usual way.
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