My top 10 mistakes that I see people making time and time again when they divorce:
1. Not using a solicitor
Many people understandably worry about how much a solicitor is likely to cost. In a divorce, most people will go experience financial pressure; one household’s money is going or have to stretch over two households in the future. A legal bill of perhaps thousands of pounds is the last thing that you need.
The trouble is that this is one of those times when you may need to spend money to save money. Without a solicitor, you will have no idea how much is fair or meets your needs. You will have enormous difficulty navigating the legal process. The court may reject your divorce because you don’t fill the forms in properly. Problems may rise which involve complex areas of law and you may have no idea what to do.
In a divorce, you are sorting out the financial arrangements for the rest of your life. You should no more try to do your own divorce than you should do your own open heart surgery.
Very few people now qualify for Legal Aid. At the very least, have an initial consultation with a solicitor and find out what your legal position is and what your options are
2. Not listening to your solicitor
Your solicitor may have to give you advice which you don’t like. Never make the mistake of thinking that just because you don’t find the advice palatable, it must therefore be wrong. The law is not perfect; it’s aim is to achieve justice, but sometimes it fails. Never confuse what is legally right with what is morally right. I have lost count of the times when I have heard a judge say “This matter is being resolved in a court of law, not a court of morals.”
If your solicitor knows what he or she is doing, you need to take on board their advice. They are not saying it to be difficult or to run up a big bill. Good solicitors know that getting a reputation for costs running will damage their business. For example, a good solicitor may point out that you have an excellent chance of success if you litigate through the court, but if all that is at stake is, say £5,000, there is no point in incurring a legal bill of £10,000 to get it.
Their advice is in your best interests. However, if you think that they have got it wrong, get a second opinion from another solicitor so you can be confident about your position.
3. Relying on friends for legal advice
Your friends are important in a divorce. They will be a shoulder to cry on at the darkest moments. However, don’t make the mistake of taking legal advice from them, even if they’ve been through a divorce already. A little bit of legal knowledge is a dangerous thing and no two divorces are the same.
Don’t make the mistake of using your solicitor for emotional support either. Your solicitor is not a counsellor. If you want to spend a meeting with your solicitor telling him or her about what appalling so and so your ex is, the solicitor will sit and listen, but the clock is ticking and you are paying for the time. If your solicitor has stopped writing down what you are saying, it may be a sign that he or she considers what you are saying to be legally irrelevant to your case.
Rely on your friends for emotional support and on your solicitor for legal advice.
4. Delaying the inevitable.
Some cases drag on for years as the parties can’t bring themselves to take steps to resolve matters. They hope that sooner or later, thing will just get resolved. The reality is that the longer things remain unresolved, the more it will cost in legal fees.
5. Not getting a financial order
A lot of people divorce without using a solicitor. They also reach a financial agreement with their ex about what is happening about the house, pensions, maintenance etc. As they don’t have a solicitor, they do not realise that just because you have agreed what is to happen and have divided your assets between you, they are still at risk of future financial claims.
It is essential that you also obtain a financial consent order from the court recording the agreement; without this, you will be unable to enforce the agreement, for example, if the maintenance payments dry up. You also will not have a clean break in relation to your capital or income; this means that your ex can make further financial claims against you in the future for a share of your assets or maintenance.
6. Not using Alternative Dispute Resolution
Too many people still think that you should use the court to resolve disputes. While there are some cases that will only ever be capable of resolution if a judge decides the outcome, more people should consider using alternative dispute resolution techniques such as the collaborative process or mediation. These methods of dispute resolution allow you to both retain control over the outcome, to set your agendas and to maintain a good working relationship in the future. They also tend to be cheaper than litigating through the court.
7. Not getting full financial disclosure
Before you engage in any negotiations, you need to have a clear picture of what everyone’s financial position is. It may be very unwise to just take your ex’s word for what his pension is worth or how much she earns. You need to get a clear financial picture before you do a deal.
You also should not succumb to the temptation to not disclose your assets or income properly. It may give your ex grounds to apply to set aside a financial order on the basis that you have misrepresented the position.
8. Spending too much time worrying about whose fault it all is
I have blogged many times on this subject. The divorce laws in this country are antiquated when it comes to the grounds for divorce. Requiring one side to have committed adultery or behaved unreasonably before you can get a divorce without waiting for at least 2 years just encourages people to think that whoever is to blame will be punished in the divorce.
Nothing could be further from the truth. People’s conduct is only taken into account in a tiny number of cases and even then it has to be in some way financially relevant. The fact that he has had an affair or she has behaved unreasonably will not affect the financial outcome of a divorce, not last because just because the divorce petition says that someone has behaved badly does not necessarily mean that is what has caused the marriage to break down. The adultery cited in the divorce may have been a symptom of the marriage’s difficulties and have been preceded by years of the other side behaving unreasonably. It may even be adultery that did not begin until after the parties had separated and concluded that their marriage was over.
Armstrong Family Law is campaigning to reform the divorce laws so that a modern no-fault divorce law is introduced. Sign the government e-petition here to show your support for modern divorce.
9. Thinking about the outcome as winning or losing.
Divorce is not about victory or defeat. It’s about compromise. Neither of you are likely to be financially better off after even the simplest and cheapest of divorces. Spending too much time aiming to win is likely to lead to a big bill. There will have to be some give and take. The best outcomes are ones where both sides feel that they have received a fair outcome. The courts adversarial approach unfortunately tends to make people think that they either win or lose. Mediation and collaborative process encourage people to look at things differently.
10. Not learning from your experience
Many people rush from one relationship into another. Too many of them do it with very little preparation. They may feel that they got their fingers burned in one marriage so they just live together with a new partner, assuming that if that new relationship ends, at least there won’t be a divorce. Yet, the breakdown of an unmarried relationship can be just a legally complicated as a married one, with the added complication that the cohabitation laws are underdeveloped in this country and the court’s discretion to achieve a fair outcome is severely restricted.
If you start a new relationship, give serious consideration to a cohabitation agreement or, if you plan to marry, to a pre-nuptial agreement.
22 April 2013