DIVORCE & SEPARATION

Divorce and Separation

Part 1- how to do it well


Finally taking the decision to separate may come as a welcome relief. It may also come as a massive shock. Some clients are able to sit down and agree that their relationship has come to an end. For others it literally feels like a rug has been pulled from under their feet when their partner announces they want to separate or they find out their partner has been unfaithful.

Not surprisingly, the feelings that both of you will experience from time to time are akin to that of a death in the family. This is of course entirely natural as you are mourning the death of your relationship. Some clients feel that they are on the “back foot” if they have not instigated the break up and it becomes apparent that the other party has been formulating an exit plan for some time. Others feel vulnerable if they have given up work to look after children and  a have reduced earning capacity as a result. Some have had no real dealings with the family finances over the years and allowed their partner to do all of that. Having limited information makes them feel insecure.
Other clients may have all the financial information at their fingertips and have a good career however in so doing they have spent less time with their children than they would have liked and are now worried that they will be viewed negatively for that.

Stages of separation

  • shock and denial that it is really happening
  • anger and blaming your former partner or another person
  • sadness and depression
  • moving forward – acceptance and adjustment to your new life.

Clients come to me at all stages of the process. The feelings that they have are not linear and they will have good days and bad days. Part of what I do is identify the bad days. If you are having a bad day, you can’t be expected to make life changing decisions for you and your family and I will tell you that. We can always reschedule a meeting.

I would always recommend that you consider counselling when you are going through a separation or divorce. A counsellor or family therapist is a great resource and can assist in getting you to a place where you feel confident making big decisions. I am also very much of the view that you need to be in control as far as you can be in relation to your divorce and separation and you need to be able to do that in a calm environment where you feel supported.

I believe that you are the best placed person to make decisions about you and your children’s future and that you should be able to do this face to face with your ex. It is actually very easy to hide behind your lawyer and instruct them to play hardball with the other side. It is far more difficult to sit in a room with your ex and speak about things that might be really hurtful. In my experience, unless those “hot button” issues between you  are articulated they will derail any chance of lasting peace. You may agree to disagree but  if you allow yourself to go through the process harbouring animosity and resentment you will have done yourself a disservice.

Both Collaborative Practice and Mediation provide the templates for a good divorce. This may sound like an oxymoron but I believe separation and divorce can be done well.

At the outset

What I generally find to be helpful is that if we can get a short to medium term plan agreed quite quickly, this gives you a degree of certainty and relief.

I would generally like to have in place a temporary plan that deals with the following:

  • where your children live and who will take care of them
  • how you and your former partner will support yourselves and your children
  • what, how and when you will tell the children, other family members and friends
  • who will pay outstanding bills or debts
  • who will stay in the house
  • how will the rent or mortgage be paid
  • what will happen to any joint bank or building society accounts
  • what will happen to the house, car, furniture and other property.

Once these arrangements are in place, we can then agree on who is going to provide financial information, instruct valuations of property etc.

The middle of the process

Once we have all the valuations of property such as house and pension values and a note of any debt we can then begin to make a list of the assets and liabilities. This is often referred to “a schedule of matrimonial property”. In Scots law as a general rule, assets and debt acquired by either party before or after the marriage are not considered to be  matrimonial property or debt and are therefore not available for division. Gifts from third parties and inherited wealth are also not part of the matrimonial pot. We then need to work out how to divide these assets. Both you and your partner may want the same assets such as the family home. If we are engaged in a Mediation or a Collaborative Divorce I would normally ask you both to identify your interests.  Your interests will be pretty similar in that you will both need a house, want to spend time with your children, need enough money to live and both hopefully have some retirement provision.

We can then use this wish list as a basis for fulfilling your needs. There may be a number of scenarios and we would  reality test them all. You may be sent to obtain financial advice in the middle of the process so that we can be sure your chosen option is not only viable but sustainable.  I also like to make sure that the process is not moving too fast and that both of you feel comfortable with the pace. It is important that you both feel that you fully understand both the practical issues such as the finances and you feel emotionally ready to deal with big decisions. Don’t be surprised if your ex who seemed totally prepared with the exit plan at the outset has a wobble in the middle of the process by which time you feel much stronger and ready to move on.

The end of the process

Once options are verified and we have resolved all issues,I can go about drafting an agreement known as a “Separation Agreement”.  This is a binding contract and will deal with money, pensions the house and can include a parenting plan and provide for levels of spousal support and child support. Both parties sign in the presence of a witness and this deed is generally registered. Once registered you each get your own extract for safekeeping. There is no real need to divorce after this unless you want to.

Divorce and dissolution of civil partnerships

If you have a separation agreement in place, your divorce will be relatively quick and straightforward as you have already agreed everything in advance. We normally wait either a year following the date of separation to file with the consent of the other party or wait two years after which their consent is no longer required.

PART 2- HOW TO DO IT LESS WELL

I believe court is a place of last resort. By going to court, you are surrendering all control to a stranger- a judge. You may, through no fault of your own, find yourself in court as your ex has raised proceedings. I frequently find myself acting for clients who find themselves in court against their wishes. Traditionally, court was the default option and for some lawyers court is their comfort zone. My mission statement to you is that I won’t take your case on if I think my intervention will do more harm than good. In the majority of cases I believe that resorting to court will do more harm than good. There are exceptions to that e.g. in cases where despite repeated efforts you are getting nowhere with an ex in relation to seeing your children, or you want to relocate with your children to another country or your ex is not providing any financial information or you have had proceedings raised against you. Sometimes you are throwing good money after bad in trying to negotiate with these people and you need a judge to intervene and make an order.

The downsides to court aside from the lack of control, are :

  • the strict timetabling – if you are having a bad day, the court doesn’t reschedule
  • the adversarial process- the other side can try to paint you in a bad light and you feel compelled to respond to paint them in a bad light
  • the written word- court requires both sides to lodge written pleadings and affidavits- once lodged in court they can never be retracted.
  • lack of face to face communication- this leads to barriers coming up and  mistrust to set in
  • delay- your case doesn’t necessarily run on time and the other side can seek continuations
  • cost – it can become very expensive and emotionally draining

If you are running a contested divorce, you will still be going through the range of emotions detailed above but also will likely be feeling very hurt and mistrustful towards your ex. You have little or no time to take a breath. Many cases settle on the morning of a proof or trial. Imagine, having to steel yourself  to come face to face with an ex who has lodged hurtful statements about you in court and against whom you will need to give evidence. You will probably have had a sleepless night. Against that background you are now being forced to do a deal,if not on the steps of the court, in some makeshift room.

Separation agreements are drafted by the lawyers there and then and you are expected to sign. I have had many clients over the years who tell me that they were in a daze and were so wound up they could have been signing anything. Contrast that with the scenario above. If we do end up in court, I will still try to make it the best experience for you it can be. I will try to find a way to work with the lawyer on the other side, I will try to identify areas where we have consensus and suggest a face to face meeting even if it is just between the lawyers to see if we can reach a negotiated settlement.

Another option I would always consider before court is that of arbitration. Whilst this is an adversarial process, you get to choose the Arbitrator who is a specialist family lawyer. The process is streamlined and there are no delays as the arbitrator is wholly focused on your case.