Divorce and Finances: Choosing the right process for you
The process of a divorce may seem overwhelming. Following a separation, there might be disputes relating to the matrimonial assets and arrangements for the children and there are a number of options available to separating couples to try and resolve those issues. It is important to consider all your options and choose a process which is right for you and your family.
Below are the more common options which could help you and your partner reach an agreement:
- “At the table discussions”
You and your partner could take the time to sit down together and work out your own agreement. We would always advise that you speak to a solicitor about formalising any agreement you reach directly between you but note that a solicitor cannot advise on the fairness of a financial settlement if he or she has not had full financial disclosure form both parties.Where there are complex or sensitive matters to be discussed, this may not be a suitable option for everyone.
- Collaborative Practice
You and your partner each instruct your own collaboratively trained solicitor. The collaborative process consists of meetings which are referred to as ‘four way’ meetings; each party and their respective legal representation.At the first ‘four way meeting’, the solicitors ensure that each of you understands you are making a commitment to working out an agreement without the need to go to court. You will all be required to sign an agreement to confirm this. You and your partner will share your individual objectives for the collaborative process and there will be a subsequent agenda agreed, which will be followed at the next meeting.
All subsequent meetings deal with those objectives and any issues or concerns one of you might have. The meetings could take the ‘four way’ meeting form or you may wish to speak to your solicitor separately.
Once an agreement is reached, there will be a final meeting during which you and your partner sign a document setting out the agreement. Your solicitor records any agreement reached in a consent order which, once finalised, is lodged at court for a Judge to consider. If the Judge approves the terms of the agreement reached and as recorded in the consent order, it is made into a binding agreement.
If an agreement is not reached through the collaborative process, you and your partner will have to instruct new solicitors and start the process of trying to negotiate a settlement again. The parties and the solicitors will therefore want to make every effort to settle the case.
A mediator is an impartial third party and their role is to meet with both parties, identify the issues in dispute and help the parties work towards an agreement. Mediators cannot provide any legal advice but can provide information to help you and your partner reach an agreement between you. There will be scheduled meetings during which you and your partner discuss your objectives, disclose information and attempt to agree matters through exploration of workable options. You and your partner will need to attend an assessment in order for a mediator to determine whether they think the process is suitable for you.You and your partner can instruct your own solicitor to provide legal advice in the background of the mediation process. Once the proposals are in place, you and your partner may obtain independent legal advice and decide whether you would like to convert the proposals from the mediation process into a legally binding agreement.
Any proposals made during mediation are without prejudice and will not be legally binding on the parties until they have been formalised and made into a consent order which has been approved by a Judge.
- Solicitor Negotiations
Negotiations can take place through solicitor correspondence. This involves you and your partner taking independent legal advice on your various options and negotiating through correspondence until an agreement is reached. When it comes to negotiating a financial settlement, you and your partner could agree to an exchange of financial disclosure through solicitors. Your solicitor can then advise on a fair financial settlement and negotiations take place without prejudice.
Once an agreement is reached, it will be recorded in open correspondence and your solicitors will prepare a consent order for lodging at court. A Judge will consider the agreement, and if he or she approve the terms of the order, it will become legally binding on both the parties.
You or your partner can make a court application to have an issue resolved. In order to issue a court application, you will need to confirm that you have attended a Mediation Information and Assessment Meeting (MIAM) or be able to claim an exemption as to why your matter is not suitable for mediation.
A court will then put in place a timetable that parties must adhere to. Court proceedings can be very expensive but they can be helpful because it puts in place a timetable for the matter to move forward which is useful, particularly if one party is not engaging in the proceedings because ultimately, if an agreement has not been reached in the meantime (because you can settle a case outside court even whilst there are court proceedings underway) a Final Hearing will be listed and a Judge, after hearing the evidence and considering what is fair in all the circumstances of the case, will make a decision and impose this on both of you.
In the first instance, you and your partner should instruct your own family solicitor and obtain independent legal advice to discuss the options and processes available in more detail. Here at Herrington Carmichael we have a specialist family team who are happy to discuss your next steps. We offer a half hour fixed fee meeting for £125 + VAT or a one hour fixed fee meeting for £200 + VAT. All our solicitors are members of Resolution, which is an organisation of family lawyers and other professionals who are committed to the constructive resolution of family disputes, following a practice that encourages a non-confrontational approach.
We also have a variation of expertise within our team including Maria Mulroe, partner and head of department, who is collaboratively trained. Danielle Bentley is also currently training to become a mediator.
If you would like to make an appointment or discuss your matter further, please do not hesitate to contact the family team on 0118 977 4045.
Our insights are accurate at the date of publication – they are not intended to contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.
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