How to avoid the Wars of the Roses
Article first published in Gallery Magazine in September 2016
Divorce carries the reputation of being one of life’s most traumatic experiences. The emotional impact of a marriage breakdown can be exacerbated by the fear and uncertainty associated with the legal aspect of divorce. There are, however, many misconceptions about divorce proceedings which can be easily dispelled.
How much will it cost?
The cost of divorce proceedings varies dramatically from one case to another. Where spouses are motivated to achieve a swift and fair division, the costs incurred will be limited.
Should I engage a lawyer?
Before embarking upon what is doubtless the biggest negotiation of your life, it is absolutely prudent to arm yourself with all relevant information concerning your legal rights and the principles to be applied. A common misconception is that the appropriate division of assets is an equal split. This is not necessarily the case.
The first step is to establish the full extent of the “matrimonial pot”. It is not unusual for one spouse to attempt to avoid the disclosure process with the aim of undervaluing assets or even excluding certain assets from negotiations. The impact of such an approach is that overall settlement is likely to be unfavourable to the other spouse. Thus, the assistance of a lawyer in the disclosure process is often key to ensuring that the full “matrimonial pot” is established before settlement options are even considered.
A fair division will take proper account of the relevant factors, such as the age of the parties, the length of marriage, the needs of the parties and any children, the assets, income and earning capacity of both spouses. Fairness rather than equality is the goal. Applying these factors is not always straightforward and often dictates that an unequal split of the assets is the appropriate outcome.
Obtaining legal advice as to what would constitute a fair settlement may therefore be a sound investment before trying to agree matters with your spouse.
Will I have to go to Court?
The vast majority of cases settle. However, a fully contested hearing may not be avoidable in some cases. Concluding a case in such an adversarial environment can be deeply unpleasant, stressful and expensive. We do all we can to assist our clients to reach a consensual resolution, saving time and money and ensuring control over the outcome.
What other methods of achieving settlement are avialable?
Once the full extent of the “matrimonial pot” has been established, trading offers in writing and/or negotiating face to face are usually the starting point when commencing negotiations.
If those methods are fruitless or there is a particular issue (or issues) acting as a bar to settlement, other options are available, for example;
(i) Mediation – a fully qualified Mediator attends a meeting with lawyers and clients present. The comfort of legal advice complimented by the assistance of an impartial third party encourages clients to reach agreement.
(ii) Private FDR – a highly experienced Barrister with judicial experience is invited to hear legal submissions from each party’s respective lawyer. The FDR Judge provides a judicial steer, which, whilst not binding, assists clients to negotiate a tailor-made solution with an understanding of what a Court might be likely to order if the case went to a final hearing.
The success rate is impressive and the costs (both emotional and financial) are a fraction of those incurred if seeking final determination from the Court.
A divorce lawyer’s role is to navigate their client through a highly emotional and difficult time by offering legal advice and ensuring that the client is aware of all options throughout. It is the client who dictates the tone, pace and direction of the case.
Notwithstanding the most significant misconception of all, it is possible to get divorced without wasting money and to reach an agreement swiftly in respect of both the finances and/or children. A consensual resolution increases the prospect of a post-divorce relationship which is of significant importance in cases where children are involved.