Partner in the Family Department of Rawlison Butler Solicitors
In the third and final article in the series, rb’s Family team consider the cost of divorce and critically how to avoid that expense. You can find article one and article two here
Every divorce lawyer knows that ultimately every client of theirs has it within their power to dramatically limit the financial impact and cost of a divorce. If you find yourself in the unfortunate position of going through a divorce – here’s how to do it.
Quite simply, don’t fall foul of the understandable temptation to be less than candid about what you are worth. The lawyers will get to the bottom of it and they will charge for the pleasure of doing so.
In the ‘real world’, beyond TV Court room dramas, the question in dispute is not always about how the assets should be split. It is frequently about what constitutes those assets.
For the vast majority of people, they can forget arguments about who made the greater contribution to the marriage or having inherited wealth. The Court will expect it all to ‘go in the pot’.
In the vast majority of cases, if both parties fully and frankly disclose their respective finances the costs of their divorces would plummet.
How so?
Whilst the Judge has a great deal of discretion, the reality is that there is a ‘starting point of a yardstick of equality’ in most divorce cases. The Courts will only depart from that said ‘yardstick’ if there is good reason to do so i.e. there are children preventing one party from working full-time.
You do not pay a lawyer by the hour simply to tell you that “it will be 50/50”. It is ensuring that there has been full and frank disclosure that costs. Only the parties can avoid that cost by being honest at the outset. It is simply a question of whether you want to get to where you need to be for say £1,000.00 or for £10,000.00 and possibly more. Only the parties to divorce themselves can decide.
What to do?
The Courts have devised a very searching document that deals with disclosure known as ‘Form E’.
However as both parties can fill this out themselves (albeit with the help of their lawyers) they are presented with the prospect of completing this process for minimal cost. This then has to be compiled along with documentation in support which is at the respective client’s disposal and not their lawyers.
If the above is not searching enough, then each party to a divorce has the right to raise questionnaires in respect of the Form E and the disclosed documentation.
Typically either party can be compelled to explain every single transfer in their bank accounts of £500.00 or more. They are then required to confirm what this expenditure went towards and to provide documentary evidence in support.
The same applies for assets that have been disposed of and the valuation of homes, investments, cars and personal possessions etc. By the time this process is concluded, the Courts will be able to work out to the nearest £5.00 what the parties are worth.
How important is this rule about full and frank disclosure?
Frankly – vital.
Before any settlement is reached, you sign to state that you have filled out your Form E and the contents are true and wholly accurate. To knowingly make a false statement is a contempt of Court which ultimately carries the sanction of imprisonment.
Some people are prepared to run such a risk – but your lawyer would advise against it. Less dramatically, people who discovered that their former spouse has lied about their wealth will be able to re-open those settlements at any point in the future.
Thus, if you are ‘full and frank’ in your disclosure at the outset you could save yourself a considerable amount of legal cost.
If it is as simple as that why don’t more people do it?
Good question.
Perhaps they don’t read articles like this? Or because the reality is that divorce itself is an inherently sensitive and unpleasant process.
Human emotion is not meant to be rational and where a formerly loving relationship goes from being influenced by the tide of emotion to being dictated by ‘black letter law’ (literally Acts of Parliament), it may be unrealistic for people to suddenly be so regimented in their approach.
Furthermore the old-fashioned approach to divorce was framed in the language of antagonism.
Remember the Dustin Hoffman movie Kramer –v- Kramer (probably not – it was 1979), but right at the outset it was him –v- her. Or was it her –v- him? It doesn’t matter, it was the language of conflict.
Happily since then, if the Kramers were going through a divorce today they might choose Mediation or Collaborative Law and ‘work together’.
Is it really possible to ‘work together’ when you are in reality ‘against each other’? Yes – if you adopt the right process. Just remove all the language of conflict and bear in mind that in many cases it is possible to emerge as friends.
It is also vitally important where there are children and you will always be the parents of those children. Mediation and Collaborative Law are increasingly replacing the Court based process that Meryl Streep dragged Dustin Hoffmann through, in the iconic movie. It simply doesn’t have to be like that anymore.
ABOUT NIGEL
Nigel C Winter is a partner in the Family Department of Rawlison Butler Solicitors, based in the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.
He has been practicing family law for over 2 decades, is a Collaborative lawyer and a regular contributor to a wide variety of publications on divorce and family law.
Did you know? There are online advice videos at: – https://www.youtube.com/watch?v=WKsjD1sqe-U