By Hartnell Chanot
The Internet is awash with sites offering a cheap quickie divorce - but couples beware - get it wrong and you could be paying a lot more in the long run. Although they may seem a bargain at first sight, On-line and DIY divorces offer limited value. Although they may seem a bargain at first sight, On-line and DIY divorces offer limited value. Frequently the figure quoted does not include the court fees and people who take this route are often under the misconception that financial claims cease when a decree absolute has been granted. Once divorced, unless a court has made a final order dealing with the finances, your (former) spouse can continue to make financial claims against you, even against income or assets acquired after separation or even decree absolute.
The most common situations where problems can arise are financial maintenance, property disputes and pensions. For example, after divorce, your ex may find that they are unable to support themselves financially and they now require financial maintenance from you. Disputes can arise over property that was not sold or transferred on divorce; and some couples divorce without making any arrangements regarding their pension.
We are already seeing supermarkets such as Tesco selling DIY Divorce kits, claiming they can "Provide everything you will need to reach a suitable settlement", except in reality they do not provide any form of guidance for parties to reach an amicable agreement over financial and children issues and more importantly, how to negotiate financial claims between husband and wife.
By not concluding your financial matters during and after divorce, couples can face the serious consequences of paying a lot more in the long run to rectify the mistakes made. Without a Consent Order, a legal document drafted by a solicitor, all potential claims in relation to property whether solely or jointly owned, and claims in relation to income, capital and pension - remain available to both parties and you could be faced in the future with a claim by your ex-spouse demanding a share of your assets, long after the divorce. None of these issues are made apparent in a cheap DIY divorce. The Solicitors Family Law Association believes that a DIY divorce could be disastrous.
It is very unwise to use any service that does not give fully qualified legal advice. Much of a solicitors expert advice is to allow clients to know what they are entitled to from a divorce and this depends very much on the circumstances of each and every individual case. Family solicitors not only look at how to divide capital, but income and maintenance entitlement as well as pensions.
In order to understand what would be considered by the court to amount to a fair settlement, it is vital to exchange and have a full understanding of the family's complete financial information as without full disclosure of your spouse's financial position, you can be unaware of your spouse's financial circumstances and could end up severely disadvantaged. Some couples decide to split everything "equally, i.e. 50/50", which may not be appropriate where there are children, where one spouse earns a lot more than the other and where there have been unequal contributions in the past. So, if you are considering a divorce, what can you expect?
The division of finances remains one of the biggest worries alongside how to work out arrangements for children when a marriage breaks down. There are no specific rules about how assets should be divided but the courts generally give first consideration to the welfare of any children, which in practical terms, means ensuring that they are suitably housed. The court uses a whole range of criteria to determine how the assets should be divided, such as length of marriage and earning ability.. Where children are involved, the courts always give priority to the partner who will be the main carer.
To achieve a realistic picture of ones financial situation, it is important to make a list of all the assets and debts of both parties including: the net equity in the house, surrender values of any endowment policies, current values of any savings, shares, unit trusts, investments, other property, cars, antiques, jewellery etc and the "transfer value" of all pensions of both parties. If either party has any business interests, they will need to be valued and three years accounts are required.
It also helps to think about any important financial or other contributions that you brought to the marriage, such as giving up a career to look after children. The courts will also takes into account a number of factors, including the reasonable needs of each party, the parties' earnings and earning capacity, financial obligations and state of health, and the standard of living enjoyed by couples before their divorce. It is important to remember that a specialist family lawyer can help couples reach an agreement about finances saving a lot of time and emotional distress, and that a court can only divide up what is actually available.
The importance of legal advice
Divorce is a sensitive matter and a very personal issue, and there is no substitute for seeing someone face to face. The divorce itself is often a small part of the range of matters which need to be addressed when a married couple split up, and issues such as where and with whom the children are to live, whether one of the couple needs protection and how to find enough finances to go around two households tend to need careful thought and advice.
Although a divorce can seem a daunting and traumatic process, Family Mediation, Collaborative Law and Counselling can all play an important part in making the process easier, and in turn enable couples to take control of their own separate destinies in the aftermath of a break-up and retain an amicable relationship with their former spouse for the sake of any children.
Before, or during, divorce proceedings, you may want to use a mediation service. Mediation is not an expensive layer of professional advice to consider on top of solicitors' bills, but an alternative as a way of negotiating with your spouse with the help of a neutral an independent mediator using your solicitors to make any proposals you reach binding. Mediation can help you and your partner reach joint decisions about arrangements for the future and it is a quicker cheaper and constructive alternative to having decisions made for you by the courts. However, mediation is not a substitute for legal advice. You will be encouraged to consult a solicitor alongside the mediation process to advise you on the personal consequences of your decisions. At the end of mediation, the proposals you have reached can be used as the basis for a divorce settlement, or a legal separation agreement.
Collaborative law is another such alternative in which a couple and their lawyers make a commitment to resolve all issues without litigating the matter in court. If at some stage during the process one or other wishes to go to court then neither of the couple can use the lawyer they have instructed collaboratively, so that there is quite an incentive to work matters out for all concerned. All negotiations are carried out in face-to-face meetings with both lawyers present, and the approach is a search for fair solutions for all concerned. Collaborative lawyers can bring in external assistance for the couple such as independent financial advisers and relationship consultants / psychologists if a couple are getting stuck in their deliberations or need some help to talk matters through away from lawyers.
A divorce is not something that should be dealt with over the computer, or picked up off the shelf of your local supermarket. You only get one chance at getting it right, and dealing with divorce properly is investing in your financial future. No two divorces are the same and any financial settlement will have lifelong implications for you and your children. You only get one chance at getting it right.
About Hartnell Chanot & Partners - Award winning Hartnell Chanot & Partners is one of the largest specialist family law practices in the UK. The firm provides expert legal advice to people affected by a family breakdown, divorce or separation and is recognised as a leading firm in this area by independent sources. Its website http://www.hartnellchanot.co.uk contains a vast amount of freely available information to help families across the UK and Internationally deal with the numerous issues arising from a divorce, separation or family dispute.
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