Good Divorce Week: top tips for achieving a ‘good’ divorce (and yes, it is possible…)
January is the month for New Year resolutions and, unfortunately, for some this involves deciding to push forward with the divorce they have been contemplating.
It is now possible to divorce quickly online, but, for many, divorce is a protracted and hugely emotional process with the end not only of a relationship but the family unit too, not to mention a division of finances and changes to practical living arrangements.
So what are the things to think about if you want to divorce respectfully, limiting the emotional and financial cost?
Choosing to get divorced is a momentous decision and some regret it after the event. Make sure you have fully considered all the implications. Have you explored the option of counselling if you are going through a rough patch? Even if you see no way of resolving difficulties, relationship counselling can be a way to communicate your feelings to your spouse with someone else present.
Finding the right lawyer is vital. You need a solicitor who listens to and fully understands your views and objectives, ideally someone who will not raise the temperature unnecessarily but who will fight your corner if required. Trust is key as you will have to share highly personal information with them – a lawyer will best represent your interests if you tell them all relevant information. It helps if you can provide them with all dates and financial information in advance of your first meeting, so time can be focused on your solicitor's advice and planning a strategy. Consider finding a solicitor through Resolution www.resolution.org.uk.
Specialist counsellors or therapists can support you through the process and help you deal with the emotional fallout of your marriage ending and/or assist you in dealing with your spouse going forward, which is critical if you have children. A good support network of family and friends is also invaluable but remember they will not be objective. It is helpful to have one-to-one professional emotional support even if you find an empathetic lawyer, not least as lawyers can be expensive counsellors. Beyond that, other professionals such as divorce consultants can assist with the practical side of proceedings (for example, collating your financial disclosure documents or preparing your budgets).
For nearly all my clients, telling their children that ‘mum and dad are divorcing’ is one of the worst things they have to do. Dealing with your own grief or anger while shielding children from conflict and helping them adjust to new co-parenting arrangements is a real challenge. Enlisting a children specialist can be helpful, not least to try and provide joint messages to children. Research shows that the on-going conflict between parents has a bigger impact on children than the divorce itself, so the more conflict children are protected from the better.
Most people who have made the difficult decision to divorce want to get on with it straightaway. However, in order to petition for divorce without having to wait for two years of separation, our divorce laws currently stipulate that one spouse has to prove that the marriage has broken down irretrievably, either by adultery or unreasonable behaviour. Ideally, each of the couple knows and agrees to the contents of the divorce petition before either issues, save in exceptional circumstances such as international divorce cases where specialist advice should be sought.
Be mindful of issuing a petition without considering tax implications as it may be sensible to wait for the start of the tax year to divorce for those who have assets beyond the matrimonial home.
There is no automatic formula for the division of assets and income in a divorce, the court has considerable discretion. The starting point (but not always the end point) is a 50/50 division of everything that was built up during the marriage, regardless of whose ‘fault’ it might be for the marriage breakdown, and the breadwinner has no higher claim than the home maker. There will be a close regard for each spouse’s needs, with first consideration to the welfare of any children. It is essential to be transparent about assets and resources (including pensions, income, expenditure and property) and you can save costs by producing full information to your lawyer promptly so that they can advise you on the likely financial settlement or orders.
Given the time and expense involved in court proceedings, plus the emotional impact on you and your spouse, consider alternatives such as mediation, collaborative law and arbitration. A contested financial case can take a year before it gets to a final decision and can cost tens of thousands of pounds.
If both of you have second thoughts about bringing the marriage to an end but still want to agree a financial settlement should you ultimately divorce down the line, consider pulling back from divorce altogether and negotiate a Reconciliation Contract, which is a form of post nuptial agreement which can also set out commitments in the relationship while at the same time prescribing the terms of a split if the reconciliation fails.
Divorce is undoubtedly one of the biggest challenges anyone has to face. However, by taking a realistic approach and with good support, most people do recover with time to enable them to move on to the new chapter of their lives.
First published in The Evening Standard, 7 January 2019.
If you have any questions about the issues raised in this blog, please contact a member of our family team.
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