This week I was in court again with a business person who hates the legal system. The judges are rotten. The barristers are all stupid, and whilst I am a nice person they would do it all better. Which begs the question, why bother to instruct me at all, why not just handle their own divorce and financial settlement?
This made me ponder the value of a specialist family lawyer. Of course it costs money, and of course the more you disagree with your other half the higher the cost will be. It also costs quite a bit to go to the dentist, but would you fancy filling your own teeth?
What I can offer is knowledge, amassed over a twenty year period. Clients are often in a state of confusion, panic and distress when they first come to see me. I can help them form a clearer picture very quickly. Whilst every case is different there are regular financial themes that occur. I know the relevant case law and what the likely outcome would be if the matter were to be heard by a judge. I know how to pitch an offer to try to reach a settlement that is workable. I like to think that that I can offer creative financial solutions. All of this is what a client needs quickly so that they can move on with their lives.
The legal process can be daunting. If a client is running a business that will probably have to be valued. Equally, if it is a new or, clearly not a very profitable business then I would try to make sure that precious money was not spent on a valuation. Pensions may need to be valued and advice given as to Pension Sharing. The correct level of maintenance needs to be agreed. In the long term it may be possible to pay a lump sum in lieu of maintenance, a clean financial break. Presenting a client’s case in the right way is crucial.
A divorce client is often going through one of the worst periods of their life. They can be very stressed. A lot of Emmersons Solicitors business clients are used to being in control of everything. They can therefore become very angry and frustrated if they are on the receiving end of divorce proceedings. However, appearing in court without a family law solicitor would be a disaster. They would be too emotional and quite often too aggressive to a judge. One client recently said that everyone in the court room was too polite to the judge. Luckily for him I had advised him not to speak! Thankfully he followed my advice and only addressed the judge after an order had been made in his favour. He doesn’t know how lucky he is.
So why instruct a solicitor?
Knowledge of the law, the procedure, the likely outcome. An ability to negotiate on your behalf, to be your voice, to protect you from your angry self, and to guide you through the legal process. Or you could borrow my pliers and take your own teeth out!
The popular press is very keen to report on high profile divorce cases. You know the ones, Russian oligarch’s wife obtains settlement of £2 million a year for the rest of her life…and she’s only 28!
Back in the real world, where the vast majority of divorcing couples live, what is the reality?
Some of the issues that a judge would take into account are:
The welfare of children. This must be considered first.
The financial needs, obligations and responsibilities of the parties.
The income, earning capacity, property and other financial resources which each party has and the potential to increase income.
The Law Commission has suggested that the law should be changed to be more specific, that there should be a set formula. However, I would disagree. As a divorce solicitor who has been practising for 23 years I have used the same law all of that time. When everything else is constantly changing this piece of law has kept up with society because it is flexible.
No two cases are the same and no two clients are the same. Consider the following.
Sandra and Tony are divorcing as are Rachel and Andy. In each case the parties are all 52 years of age and both couples have been married for 15 years. They each have two children aged 12 and 16, and each couple has a home worth £200,000 with no mortgage. In each case one partner earns £30,000 and the other £40,000. So a simple formula would calculate the same settlement for each couple.
However, what if Sandra had arthritis that was going to force her to stop working in three year’s time?
What if one of the children had a long term disability which meant that they would never be able to live independently?
Do all four adults work in the public or private sector?
Are they on final salary pension schemes?
Are any of them in the police force or armed services as they can retire earlier with a good pension.
The situations are not the same. As an experienced family lawyer I would pick out the strongest features of a client’s case and advance them. Using the legal criteria listed above, how do you think you would advance your own case?
Often the higher earner will give the lower earner a greater share of the equity in their home. In return they will not then have to pay any maintenance. The lower earner must have enough money to be able to maintain the house for this to work.
If one party seeks maintenance then it must be for reasonable needs. As you can imagine, a North East judge had very little sympathy for the lady who chose not to work, had no children at home and stated that she needed £300.00 per month to buy underwear! The Husband worked offshore in some appalling conditions seven days per week. The judge ordered short term reduced maintenance to give the lady time to find a job, and presumably enough time to sell her vast collection of underwear!
For some reason September sees a peak in the number of people separating from their partners. It is believed that one of the reasons is that a couple have been on holiday and spent more time together which serves to highlight their differences.
Whatever the reason, you do not need to panic. If you seek legal advice you will have all of the facts that you need at an early stage. Many client’s leave our office after their first appointment with a great sense of relief. Emmersons Solicitors Family Law Team have years of experience. We are members of The Law Society Family Law Panel and Jacqueline Emmerson, our senior partner, is a Collaborative Family lawyer. With all of our experience we are able to dispel the myths surrounding separation. Advice given by your friends in the pub is no substitute for legal advice.
The usual way to approach matters is to gather all of your financial information eg. How much is your home worth, how much is left to pay on the mortgage, do you have other savings and investments, and do you have debt?
The next stage is to swap both parties financial information. At that stage it may be very easy to negotiate a settlement. If matters are more complicated then you could opt to attend meetings with your ex-partner and both solicitors. This can be a very speedy method of filling in gaps in financial information. It is often possible in a first meeting to narrow many issues still in dispute.
If you don’ want to come face to face with your ex-partner you can still attend a meeting whereby the solicitors meet in a room and use separate rooms to see each of their clients.
If you feel that you could both negotiate in an attempt to avoid court proceedings then Collaborative Family Law could be the answer. This process involves meetings as above. However, you both sign to say that you are committed to the process. The idea is to make you both work harder to find solutions that will avoid the adversarial nature of court proceedings. Clients usually comment that they feel more in control of their separation using Collaborative Law.
Looking at the processes above should help you to see how straightforward matters can be. You don’t have to worry about the law; your solicitor is there to guide you through the legal complexities allowing you to concentrate on moving forward.
Some clients are willing to take part in a round table discussion (sometimes referred to as mediation) to resolve their differences.
In other situations the hurt felt by one or both parties is so strong that the support of a lawyer is required. The simplest method of utilising a lawyer is to sign up to a collaborative law resolution process. Often this approach can also be cheaper than the traditional litigation approach.
What can drag out the process is where one party for whatever reason is not willing to be collaborative and wants their pound of flesh. Unfortunately there are lawyers who promote such behaviour, even when they are members of organisations such as Resolution.
At Emmersons we work to resolve issues amicably and cost effectively if at all possible.
If you live in Northumberland, Tyne and Wear or County Durham then why not call in to see us or email us at firstname.lastname@example.org.
If you live overseas and you are looking to divorce in England or Wales then we can advise you too. Contact email@example.com
You can get more information from our webite www.emmersons-solicitors.co.uk
Divorce or separation or dissolution does not have to be like the War of the Roses. Emmersons will help you separate in a friendlier way.