Is getting divorced expensive?

Getting Divorced: Know your options | Help and Advice from Cotswold MediationMost people would answer a straight “yes” with the implication that the process is often out of their control:  costs escalate, emotions get in the way of rational decisions and discussions, and the lawyers end up the only beneficiaries.

However, the cost of the divorce process is actually very much in your hands – you can decide how much or how little you use your lawyer.  The more you do and the less your lawyer does will reduce your legal costs.  Law is a service you pay for like servicing your car – you do it or you get a garage to do it.

Also, of course, the more you argue, the more it is going to cost and that cost is met out of joint assets so there are less resources for everyone.

There is, obviously, the practical cost of getting divorced.  In most cases both parties will be financially worse off as a result of a divorce because they have to live in two separate households – obviously more expensive than living in one.  A house may need to be sold and smaller ones purchased, a pension may need to be divided, other family assets – whether savings or photographs or pets – have in some way to be divided and these often involve painful and costly decisions.

However, not only can you reduce the cost by using mediation, whereby you both employ one person rather than both employing a separate lawyer, but you can also reduce the cost by only using your lawyer for part of the process rather than all of the process.

You might decide to come for some initial advice and then actually make an application for a divorce or a financial decision yourself.  Or you may see a lawyer and then go to mediation and then go back to the lawyer for legal advice pertinent to your situation.  You decide how much or how little you use a lawyer and you pay accordingly.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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Lack of trust

 

I recently heard Evan Davies on the Radio talking about trust in the business context and how recent research suggests that businesses actually run better from the bottom up rather than the top down.  What that means in practise is that responsibility has to be delegated, employees need to be given the trust, the resources, the authority to implement policies and procedures, the more you trust people the more they respond positively.

Couple in talksOne example used was customer service.  It is key to any business, you must deal with your customers well to keep them coming back but you cannot write a manual on how to do customer service, it has to be innate, it has to be genuine and it has to come from the desire to do your best for the customer.  People generally will naturally try to please if they are in an environment that encourages them to make decisions.  So trust is good for business, is good for employees, good for profits and is good for customers.

Trust is something that is often very lacking in family disputes, trust is after all the very thing that may have been destroyed when a relationship breaks down.  Lack of trust then leads to an escalation of misunderstanding.  One party might genuinely want to do something that they think will benefit both parties but the other is so suspicious that they will not agree and/or assume an ulterior motive which means that agreements are hard to reach, negotiations breakdown and parties head inevitably to Court.  Court further damages relationships and costs an inordinate amount of money and ends up satisfying no one.

So how to deal with the lack of trust.

I feel that any kind of face to face encounter, however difficult is actually an important step in dealing with lack of trust.  It is far more difficult to misunderstand or deceive face to face.  Both parties can see that the other is finding the situation difficult, which can be reassuring.  Often one party thinks that the other does not feel any pain or is not going through any emotional or financial difficulties.  This is rarely the case, both parties find divorce/separation difficult; but it is a joint problem which needs a joint approach.   The sooner the parties can begin to work together despite what may have happened between them, despite the lack of trust, the better it will be both financially and in the long term emotionally.

Mediation is a relatively cost effective way for the parties to meet face to face and discuss in the way they want to, how to deal with their particular situation and with the help of the Mediator to try and work out the arrangements that can best suit all the family members as far as possible.  There is rarely an ideal solution but somehow parties need to work through any potential lack of trust to come to a mutually beneficial arrangement.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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Research reveals high satisfaction with collaborative law

An interdisciplinary research project looking at how people accessed help in family disputes has just published preliminary findings from a national survey into the three major forms of out of court family dispute resolution which are Mediation, negotiation between Solicitors and Collaborative Law.

The three year study commenced in July 2011 and is funded by the Economic and Social Research Panel.

Client at a deskGenerally Mediation was recognised as the most common way of dealing with matters outside of Court but there was also higher than expected recognition and experience of Collaborative Law, which has only really been available in Britain since 2006.  Collaborative Law also achieved the highest level of satisfaction amongst the participants to the questionnaire.  There were some problems expressed with Mediation, some clients feeling dissatisfied as they felt intimidated and unprotected by the Mediator.  There is often insufficient time spent explaining the difference between Mediation and the Collaborative process.  They may sound similar but in practice are very different, particularly if you feel vulnerable or anxious and need the support of a solicitor with you in negotiations.

In Mediation you are on your own with the Mediator and your partner or ex-partner.  That can be frightening or at least intimidating, certainly disconcerting. The Mediator does not intervene on your behalf, the Mediator is neutral.  However this can be a very cost effective way to negotiate settlements but equally it can be intimidating.

With Collaborative Law you have your lawyer with you who supports you but also in the collaborative process, both lawyers are trying to reach a settlement and it is all carried out in a very open and transparent way with all parties present.  There is little opportunity for either intimidation or for one party to become aggressive or intimidating or to be difficult about seeking compromise.

The survey found that people going through divorce found Mediation very hard emotionally as a process – but Mediation is designed to be in parallel with using a solicitor who should support you through the process.  Very often though, of course, cost means that people are reluctant to spend time with both Lawyer and Mediator.

A significant finding of the research was that of the divorce/separated post 1996 sub-sample, women who were offered Mediation were less likely to take it up (49%) then men (71%).  Although of those who did take it up, women were more likely to be neutral about the process (40%) whilst men were significantly more likely to be dissatisfied (55%).

For more information about the project see Mapping the Paths of Family Justice

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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Mediation explained

From 6 April 2011 the Ministry of Justice proposed that before anyone made an application to the court in relevant family proceedings (and this is not divorce – relevant means an application in relation to money matters or children issues), the person making the application should contact a mediator.

Nicky GoughMediators must be authorised to carry out the mediation information and assessment meetings (MIAMs).  The applicant attends an information meeting at which the mediator will give advice about all forms of alternate dispute resolution.  This could involve mediation, whereby both parties meet with a trained mediator to see if the three can make any progress with regard to agreeing what is to happen either in relation to financial matters or in relation to the children.  The mediator may also discuss a collaborative process, whereby each person going through the divorce or separation has a collaborative lawyer and the four meet round the table to work through what needs to be done either in relation to money, property e.t.c., or children or both.

Hopefully a form of mediation acceptable to all the parties can be agreed.  If not, to demonstrate compliance with the Ministry of Justice pre-action protocol, the applicant would need to provide a form FM1 with their application to the court.  This is generally completed by the mediator, but can be signed by the solicitor acting for the applicant.

So what does the initial meeting with the mediator consist of?  Generally the mediator will try and meet both parties, either separately or together, and explore with them the various options available.  Also whether mediation is suitable if there is a risk of either party being influenced by fear of violence or intimidation.  A mediator can also assess whether they qualify financially for Legal Aid for family mediation.

If the parties do qualify for Legal Aid then the mediator cannot charge for this initial MIAMs meeting.  If either party qualifies for Legal Aid and they both decide to proceed with mediation, they are given the option of an onward referral to a Legal Aid Mediation Service if that particular mediator does not offer Legal Aid mediation.  The parties can decide to stay with their mediator, or choose the collaborative option.

The role of the mediator is of course totally neutral.  Mediators do not give legal advice.  For that, in the collaborative process, you need a collaborative lawyer or a solicitor, whether or not collaboratively trained.

What will it cost?

At the moment it is approximately £80 per person for attending the MIAMs meeting, or £200 per session if the parties attend jointly.

If the parties decide to proceed to mediation the cost will, subject to any particular consideration, be approximately £180 per hour per couple, with additional charges for the production of documents, depending on the amount of work involved.  The fees can be shared between the parties on a 50/50 basis, or in any other way that they may agree.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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Is the divorce process unfair to men?

I make no apologies for revisiting this issue as it does seem to be a common concern.  There is a widespread perception that with the divorce process and any issue or argument over children, particularly if it is conducted through the courts, favours women.  Is this correct?

post_imageThe courts, when dealing with children, have as their primary concern the welfare of the children.  A fairly neutral position and certainly one that is supposedly child focused as opposed to looking after the interests of either parent.

Similarly, if the issue of finances is debated through the courts, then again the court would take a position that both parties to a divorce need to be adequately re-housed and that both parents have to have accommodation suitable for their children to visit.  So why is there this widespread perception that men do badly in divorce, or that the whole process is unfair and biased in some way against them?

It may be in some way related to the other statistic, which is that most divorces are commenced by women.  This may have something to do with the fact that women tend to want to do something about a situation that is unsatisfactory, whereas men are more prepared to put up with a degree of difficulty, provided house, home, pension, finances, remain intact – when these are all disturbed they take it rather badly.

Many men feel that they have worked all their lives to achieve a certain standard of living, and with that, an adequate or even good pension provision.  Obviously a divorce means that the family home may well have to be sold and the sale proceeds distributed, therefore both are in a smaller house, and the highly prized pension pot is also split.  If you are not the instigator of the divorce, you may feel very badly indeed when all these things happen to you, seemingly through no fault of your own – and if your wife is in a new relationship then the pill is even more bitter.

However, if you can step back from the situation, the courts really do try to be even-handed and if you avoid the courts altogether, so much the better.  By using mediation and a collaborative approach to divorce, the focus is on how both parents are going to manage their separation to avoid any damage to the children and to ensure as far as possible, that everyone continues to have a similar lifestyle afterwards.  It cannot be avoided that both parties will be worse off financially as a result of the divorce, but through mediation, there is the real prospect that both parties will feel they’ve had a fair and workable outcome.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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Changing the rules in divorce

children walking through wheat fieldIn February this year the Government proposed changes to contact arrangements and this caught the headlines.  It is perhaps unfortunate that some of the other less provocative, but very sensible, proposals contained in the report were lost in the discussion about whether or not fathers would have more contact with their children.

One proposal was that separating couples would automatically have an on-line information helpline to give them access to all sorts of information when they are separating, not just legal.  I generally suggest that parents take advantage of other non-legal assistance, such as guidance and support in helping their children deal with their separation, or help to deal with their own emotional issues.  It is important that all parties in a divorce can move on from what can be a very difficult emotional situation to a place where there is acceptance and, if necessary, forgiveness.  We all know of people who are trapped in the bitterness of an acrimonious relationship.  Even after many years they can still bemoan their former partner, which actually does more damage to themselves.  It is also of course vitally important that children are helped through what can be a difficult situation.

The court encourages parents who are arguing about the children to seek alternative means of resolving these difficulties.  Anyone wishing to apply to the court is required to attend a meeting with a mediator and parents are then referred to a Separated Parents Information Programme (SPIP).  Many lawyers feel that it is unfortunate that the parents attend these separately, becauss although they are separating, they are actually going to remain co-parents of that child or children so need to work together to help the children deal with their separation and ensure that the family survives well post-separation

There are various proposals envisaged to change the way parents take matters through the court.  One is to change the terms “contact” and “residence” order to something called a “child arrangement order”, which is said to “encompass all arrangements for children’s care in private law”.  What this will actually mean in practise is of course unknown, but most lawyers feel that it is a good idea to move away from the label of contact and residence which suggest that there is one parent who has care of the children, whereas the other “only” has contact.  Arrangements should be joint, even if in practise the children spend more time with one parent or the other.

The overall message is of course that there has to be a better way for families to deal with the issues of separation, whether it be money or children, than arguing through the courts as they still have to exist together as a family, even when the parents are living separately.  In some way or another parents need to be encouraged to address the needs of their children at that time of separation more constructively than many do at the moment.  A court process which polarises parents to take particular positions and a process which can take many weeks to complete, just allows conflict to become further entrenched and any temporary arrangement for the care of the children to become the actual arrangement without any proper consideration of whether this is in fact in the best interests of all parties.

The courts have as their overriding principle the welfare of the children, but it tends to get lost in the mire of legal argument and positioning from the parents.  What we need to do is stop that positioning from the outset and persuade parents to approach their separation collaboratively and to resolve their differences through mediation.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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One size does not fit all

father and son on beachWe all know that we are all different and yet we are always faced with situations and circumstances that try and generalise and fit us all into the same box.  In divorce the court assumes a standard separation, a standard divorce, a certain way of dealing with children and money, but obviously everyone is different and there are peculiar circumstances that are unique to every family.  If a court system tries to deal with people’s needs as a process then inevitably all the various requirements of each member of the family cannot be met.

Collaborative law and Mediation are no panacea and cannot wave a magic wand, but this approach does try and address the particular needs of every separating couple and look at all the needs of their family.  There is always something unique, an elderly parent to care for, or a child that is having particular difficulties at school or a father that wants to work less and look after the children more.  The reason I am so passionate about collaboration and mediation is that it enables a unique approach to be taken, so we can focus on your particular situation, the unique set of circumstances that are pertinent to you and your family, whatever family means for you.

Family can mean same sex partnerships, adopted or step-children, grandparents.  One of the first cases I dealt with collaboratively was a couple both aged 67.  If the matter had gone to court then a normal solution would have been for the house to be sold and everything split 50/50, but the house had subsidence, so it couldn’t be sold, it had been the husband’s house for many years and meant a lot to him.  The wife had moved in with her new partner.   But during the course of the process it became clear that the wife was prepared to forgo her interest in the property and so received a lot less than she was theoretically entitled to, but she recognised the husband’s need to stay and the practical difficulties of selling a property with subsidence issues.

Sometimes one party will be convinced that the other is feeling a certain way, or more particularly not feeling anything at all.  When everyone sits round the table, the pain and discomfort and distress experienced by both parties is evident to both of them and they both realise that actually they are in this together and it makes sense to try and work it out together.

On other occasions there might be a disabled child which means that the parties are going to have to come up with a unique way of dealing with that child or the family home is also providing accommodation for an elderly parent.

At Cotswold Family Law we pride ourselves in taking the time and trouble to achieve a solution, or at least an outcome, that is best suited to your particular needs.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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Is divorce contagious?

3 children runningI recently read Malcolm Gladwell’s “The Tipping Point” in which he talks about how events that were, at one point, unusual become common place, styles that were uncommon suddenly become all the rage. One example he used was Hush Puppies, a shoe that went out of fashion suddenly came back into fashion for no other apparent reason than a few people started to wear them, then a few more, then a few more and then the ‘tipping point’ is reached and suddenly they are the height of fashion and what everybody wants to wear.

He gives another example of yawning. If you read about people yawning, even just the word ‘yawn’ or see people yawning, then what do you want to do? Yawn yourself. It’s contagious.

Is divorce contagious, is it more common than it used to be? Is there a point at which it becomes so common place that it loses it’s significance? Certainly there are trends and I have written before about the growing trend that I see, of divorce amongst those aged 55 and over, coined ‘the silver splitters’, often deciding to get divorced when the children leave home.

For my parent’s generation, divorce was unusual. In my daughter’s class at school, she and one other were the only children whose parents are not divorced. So the situation where children are spending weekends with different parents becomes the norm. Is this a good thing or not?

Obviously for people trapped in unhappy marriages it has to be an advantage that divorce is made as easy as possible with practical help and support, and no social stigma – but if it becomes too ‘easy’ does it mean that people don’t try to make marriage work?

Well, as someone who deals with divorce everyday, I have yet to find anyone whose separation is at all easy. Even if you are the one who is initiating proceedings, it is full of emotional and financial difficulties. Although it might be becoming more common and more acceptable, it is still never easy. My job is to try and help people going through a divorce or separation and to make it as un-contentious as possible, and certainly I would also say that the more that can be agreed and the more that can be dealt with in a civilised and non adversarial way – the better. But it is never easy.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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When is a matrimonial asset not a matrimonial asset?

little-boy-and-dog-300x216A typical matrimonial asset would be the family home; bought together, lived in together and when the parties separate it needs to be dealt with in a way that ensures both have somewhere to live.  The property is either sold or transferred to one or other of the parties.  This is on a relatively equal basis according to their means so that they both end up living in relatively similar accommodation.

A “non-matrimonial” asset would be for example, an inheritance, something acquired by one party either prior to the marriage or during, but in some way kept separate.  This could be a family business or an inheritance received by one of the parties and perhaps kept separately or used to purchase another property or asset.  When the parties separate what should happen to these assets; do they belong to both of them equally or should they be treated differently?  I am sure the person that received the inheritance would argue that it’s “theirs” and not to be dealt with jointly.  After all if the asset was acquired after the parties were divorced then it would only belong to that person.

The Courts have varied their approach to these non-matrimonial assets, whether it be an inheritance or other assets received post separation or brought to the marriage and kept separate.  Having established that those assets that the parties generated during the marriage otherwise than by external donation i.e. matrimonial property, are to be shared equally, the Courts are now saying that this also applies, this sharing principal, to all the parties’ property, however acquired.  But, “to the extent that their property is non-matrimonial, there is likely to be a better reason for departure from equality” (Charman v Charman [2007] 1 FLR 1246) so, the existence of non-matrimonial property can justify departure from equality, but not necessarily if this would result in unfairness to one party or the other.

So there we have it – non-matrimonial property is to be treated as matrimonial property unless it would be unfair to either party. The situation remains very unclear!

It means that if one party for instance acquires an inheritance shortly before they separate both would argue that it would be unfair to do one or the other, the recipient would feel it unfair to be divided equally, the other party would argue that it would be unfair for it not to be taken into account.  As always you would need to look at the particular facts of a particular case to come to any sensible conclusion.  This is why it is often very difficult to give categorical advice as to the likely outcome in divorce proceedings.  The financial aspects of separation are best agreed rather than argued through the Courts which can be an expensive gamble.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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The high cost of divorce

Father walking his childrenThere has been plenty in the press about the rising number of complaints about family lawyers, in particular to the legal ombudsman.  The main reason for those complaints seems to be the cost of divorce in terms of legal fees.  I am not going to defend the position of family lawyers here but I think anyone involved in divorce, in whatever capacity, knows that things often do not go well – there is often an over-optimistic approach and while everyone hopes that matters will be resolved amicably, sometimes they are not!  As I always say, the more people can agree between themselves, the better, not only for them personally and emotionally but also to reduce legal costs.

One thing that often gets in the way is the grudge.  One or both parties bear a grudge and they do not let it go.  I am told that US lawyers are advised to “pour honey over the heart of resentment”.  Not something that I have ever felt moved to do but perhaps it would be useful if we could all accept responsibility for times we have over-reacted to a supposed offence.  We may have to accept that bad stuff happens to good people for no reason and we all need to move forward.

In an ideal world I am sure divorcing couples would have access to divorce coaches, counsellors, psychologists, family therapists e.t.c. as well as the lawyer.  But since the lawyers alone tend to be more than people can afford, these other resources are just not going to be available.

So the question remains:  how does one move forward after a divorce?  It is easy to say forgiveness and acceptance are important criteria but the Decree Absolute or Court proceedings cannot themselves be a grudge to an end.  Part of the divorce process should allow and enable both parties to move on without any anger, resentment or bitterness that may well affect any future relationships.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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