Money or Property issues.
Who gets the
house? Is there going to be a claim for income? What about pensions? Is there a
risk that the money will be spent before a settlement can be agreed? It is seriously worth getting some legal advice on these issues, even if
this means taking the ultimate step of spending money. Getting into financial-advice mode is probably not
what you have on your mind if you are thinking about divorce, but you need to think consider it if there are substantial sums of money, property, pensions or income
floating about. You don't necessarily need to go the whole hog and instruct a
solicitor to handle the financial proceedings for you, but it is almost always worth obtaining an hour's worth of advice on your position.
What is the
connection then between divorce and financial proceedings? Divorce kicks into
play the Court's powers to deal with big financial issues such as the sale of
property, lump sum payments and pension orders. Without an order of divorce (or
judicial separation), the Court is pretty much limited to orders for payments of
income.
Getting an order for divorce doesn't itself dispose of the
parties' respective financial claims against each other. A party may make a
financial claim against his/her ex-spouse until he/she (the first party)
remarries or dies. There is no time limit on making a claim. A couple of points
here. First, if you think you have a financial claim against your ex-spouse -
don't remarry until you have obtained legal advice. If you do, you may lose your
right to claim against your ex. And you won't have anyone to sue about it.
Second, if you think there's a risk that your ex may have a financial claim
against you in the future, then consider settling financial matters now.
Getting a full and final financial settlement isn't entirely
straightforward. Only the Court can give you one. Documents prepared by lawyers,
signed at the full moon in blood etc, are not binding on the Court. They are
more or less "persuasive", depending on whether the parties had legal advice on
them prior to signing, made full disclosure of their respective financial
positions and what has changed in their financial positions since the date of
the agreement. The bottom line is that a court can and will disregard an out-of-court
financial agreement if it considers that the interests of fairness or,
especially, the interests of the children, require it. If you are the nervous
sort and require certainty, then the way to obtain it is to obtain a court order
confirming the terms of the financial settlement agreed.
It's not
necessary to attend court for such an order. Usually, the order is obtained on
paper. The draft terms of settlement are submitted to the Court, together with
statements as to the parties' financial circumstances. This isn't a
rubber-stamping exercise: a judge will consider whether the proposed terms of
the order are fair and reasonable. The settlement has to be within the range of
orders which a judge could reasonably make were the matter to be contested. But
provided the proposed order is within the range of reasonable settlements, then
the Judge won't substitute his/her own preference for that proposed by the
parties.
Will such an order confer a full and final settlement then, with
no prospect of any further financial claims by either party?
Nearly. But
if the order provides for ongoing payments of income to one of the parties, then
the court retains the power to vary that part of the order during its currency
(i.e., while the payments order remains in force); and it also has the
interesting power to substitute a capital sum in extinguishment or variation of
the maintenance order. It can also vary an order relating to staged payments of capital.
Far be it from us, etc, but if you're seeking a financial settlement, either by way of an out-of-court agreement or a formal court order, then it would be wise for you (or your ex) to instruct a lawyer to prepare the legal documentation, and the other party would be wise to obtain expert legal advice on whether the proposed document stacks up. There's no legal requirement for this. But there's a fair bit of legalese and technical concepts involved. It'd be a bit of a project (but not impossible) for a non-lawyer to do this unaided. And you'd have no one to sue when it goes wrong..
So... how much will this cost if you fall into the clutches of the lawyers? The answer to that thorny question is: It depends. (Sorry: we're trained to say that).
Ok. Worst case scenario. Something like 80% of cases settle. if you're one of the cases which goes all the way to a full-blown hearing, then don't expect much change from about £8k - £15k, each, including barrister's fees and court fees but not including VAT. More if you have the added of joy of expert evidence from accountants, surveyors or doctors.
Other end of the scale: you have pretty much reached agreement and just want the lawyers to do the biz with the documentation. In that case, maybe around £750, each, plus VAT.
Average case, where there's some negotiation but the case settles perhaps shortly after the first hearing: maybe around £2,500 - £4,000 including barrister's fees and court fees, but not including VAT.
Those costs are in addition to the costs of the divorce itself, and any costs incurred in relation to children or injunction proceedings.
Tip on costs: be ruthless with your solicitor. He/she will charge by the minute (actually, usually in 6-minute chunks) for all time spent on the case - considering the papers, writing letters, talking to you on the phone. Try, therefore, to restrict your contact with the solicitor to giving instructions and taking advice on the case. Avoid general chats about the iniquities of your opponent, the judge and the legal system generally unless it's relevant to a particular issue in the case. The solicitor, being a polite and charming individual, will listen sympathetically but expensively. And it probably won't advance your case much further. Save the chat for your friends & family. They may be less charming but they are usually cheaper.
Is there a cheaper alternative? As a matter of fact, there is. Consider mediation. Well, it's not exactly an alternative since if you can crack a mediated settlement, you'll probably still need your lawyers to turn it into a binding legal agreement. Still it can cut out a lot of the expense and stress in reaching an agreement.
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