Full and frank disclosure of each other’s finances is essential in a divorce. You can’t negotiate properly without it, nor can the court make a decision if your negotiations are unsuccessful. However, when does the point come when you should stop asking questions and start to do a deal?
There is a fine line between enough information and more than enough information. In a divorce financial application, the court directs that before a First Appointment, both sides must exchange Form E financial statements with supporting documents. In most cases, these are followed up by a Questionnaire and Request for Documents asking questions about the Form E’s contents and requesting further documentary evidence. This might be because the financial evidence required by the Form E has not been produced (e.g. missing bank statements, pension cash equivalent valuations etc) or there is a relevant document that needs to be provided that is not required by the Form E or something that just has not been covered by the standard questions in the Form E.
These questionnaires can sometimes be very long. I sometimes find that my questionnaire might be relatively brief, but the other side’s questionnaire is very lengthy. Some clients query this, perhaps confusing quantity with quality. The answer is that I try not to ask questions where the answers are obvious or where I know the answer already. I also do my utmost to avoid irrelevancy. Other solicitors are not always so restrained and I confess to finding it exasperating to be served with a lengthy questionnaire full of stupid and irrelevant questions. Having said that, it would be honest to admit that most of the time we solicitors will take the view that it is better to ask a question that might possibly be irrelevant, rather than not ask one that may prove to be very relevant at a later date.
Often it is simpler to answer the questions rather than argue about them. In the past, I often used to quibble about questions that I felt were pointless or over the the top, but as time went by, I increasingly found that judges, pressured by lack of time and a heavy caseload, would allow the questions as long as they weren’t ridiculous or excessive.
I have known judges to sometimes be very picky about what questions should be answered, even where the other side has agreed to answer them. The judge may point out that the parties will incur a cost in instructing solicitors to ask and reply to questions of this nature.
However, I would argue that not answering questionnaires and instead arguing about them also incurs a cost to the clients, especially if we have to spend time at court arguing with the judge about them, especially in cases where the other side have agreed to answer the question.
There is another very good reason why it is often better to answer questions than to argue that you shouldn’t have to answer them. A refusal to answer simply causes the other side to become suspicious, even if the judge has considered it and decided that the question is not relevant.
Suspicion is poison in negotiations. It gets in the way of our discussions. One or both parties will find it difficult to believe anything that the other side says about other things, even if the evidence shows that there is no reason to be suspicious. Sometimes there is good reason to be suspicious, but sometimes not. People in divorce proceedings often complain to their lawyers about things that their ex has done which they think is evidence of misconduct or deception. I often have to advise those clients that whatever it is that they are worried about seems perfectly normal and unsuspicious to me, and I advise them that they may be reading far too much into it.
Suspicion therefore adds to the bill as much as or even more than asking daft questions. I therefore take the view that it, as long as the questions being asked are not egregious or massively disproportionate, it is simpler – and most importantly – it is cheaper to answer them.
2 April 2022
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