Legal Issues on Divorce

Key Differences Between Divorce and Mediation

Divorce can be an expensive business and if you get involved in a protracted court battle with your spouse then, at the end of the day, the only real winners, from any perspective, may be the lawyers. On the other hand, if you agree to a settlement without any legal representation, or have one imposed on you by a judge, then you might find yourself wishing that you had invested some money in good legal advice.

Mediation aims to square this circle. It does not replace legal advice, but it does aim to provide a secure with an impartial environment for two parties to talk, to be heard and to listen and, hopefully, to find a way forward on which they can both agree and which can then be translated into a formal legal agreement and, ultimately, signed off by a judge.

Divorce mediation is a specific branch of mediation, separate from family mediation  

The concept of mediation is nothing new and it has long been used in both commercial and domestic environments. Divorce mediation may have started out as a sub-niche of family mediation, but is now increasingly recognized as a distinct field with its own specific approach.

The main aim of divorce mediation is to allow the divorcing couple to reach an amicable agreement on their own terms without the expense of lawyers and without the confrontational atmosphere which can sometimes be generated when people enter a courtroom in a nervous state and with emotions running high. It will generally tackle the key sticking points in any divorce situation, including issues relating to children.

Divorce mediation can be a fairly lengthy process  

Although mediation (which focuses on solutions to problems) is very different from counselling (which focuses on reasons for behaviours) and can often achieve results in a much shorter time frame, the overall process might still be fairly lengthy, especially if children are involved.

The welfare of children is always paramount in any divorce process (at least in the eyes of the law and hopefully in the eyes of the parents) and can often be the most challenging aspect of a divorce to navigate since it can be both emotionally and practically challenging and, of course, will need to work for the children as well as the parents. Because of this, any arrangements involving children often work on the basis of an initial agreement, followed by a testing phase after which the success of the test is evaluated and, if necessary, adjustments made, after which it will be tested again until all parties (i.e. parents and children) are satisfied (or until it is agreed that the initial suggestion is not workable and a new approach is tried).

While a mediator will aim to be available to the parties for as long as they are needed, (and as long as they feel that their input is valuable), one of the underlying aims of mediation is to set up a situation where the mediator is no longer required and the parties can communicate with each other directly from a position of civility, respect and trust.

About the Author

  Midlands Dove are a team of mediation specialists based in the East Midlands, who focus on family mediation as well as workplace, civil and commercial mediation.

Splitting Shared Assets when Divorcing

Divorce proceedings can be extremely stressful and traumatic for everyone involved, even more so when shared assets need to be split. When tying the knot, the last thing couples anticipate is divorce and as a result, few actually plan what would happen to their shared assets should they get divorced.

Over the years, you and your partner will have invested together, saved together and perhaps opened joint bank accounts, and in order to make financial settlements fair, there are a number of factors that have to be taken into consideration before splitting your assets.

Before we continue, it is important to note that how assets are split between a couple will be determined by the relationship. Simply put, the rights of a cohabiting couple will differ from those of a married couple, so bare this in mind.

Step 1:

The first thing you must establish is who legally owns what assets. If you’re in a cohabiting relationship then any investments or savings in your name will belong to you and your partner will not have access to these assets. Likewise, savings or investments made in your ex-partners name will be theirs and you will not be granted access.

However, there are exceptions to the rule. You may be entitled to beneficial interest if you have made contributions towards something in your ex-partners name, such as investing your own money into one of their projects. If this is the case, then you should seek legal advice.

On the flip side, investments or savings made throughout the duration of the marriage will be taken into consideration and divided as part of a financial settlement. Whilst assets amassed prior to the marriage aren’t typically subject to financial settlements throughout divorce proceedings, there is still a chance that your assets are at risk and you should seek legal advice to make sure your savings and investments are protected.

Step 2:

Next, it is time to find out what your savings are really worth in the eyes of the law. If you save money into a savings account such as a cash ISA or cash deposit, it should be pretty easy to get a rough idea of how much your savings are worth as you should be receiving regular financial statements.

However if you have invested in the stock market, or own shares and investment bonds, then it may not be as straightforward when it comes to determining the worth of your assets. This is solely because the value of your investments will differ from week to week, even day to day especially in a volatile and quick-changing market. You should talk to a financial adviser about finding out the value of invested assets tied up in the stock market.

Step 3:

It can be difficult to make sense of the whole process when splitting assets and couples often aren’t aware of how to split their savings and investments. Generally, it depends on where your savings are kept. Cash ISA, shares, investment property or savings accounts – there are a number of ways in which your money can be invested and each will differ when it comes to paying out financial settlements.

Cash ISAs

Cash ISAs can only be held in one individual name and therefore money cannot be transferred from one party to another. If the court has demanded you pay a financial settlement to your ex-partner you must withdraw the money from the account.

Shares

You have a bit more flexibility when it comes to shares as there are a number of different options in which you can pay off a financial settlement. Simply hand over control of the shares, sell the shares or give the value of the shares once sold to another party – it is your choice.

It’s easy to transfer shares, just fill in a J30 form which you can get from the company you initially brought the shares from. Alternativley, if you decide to sell your shares you will need to use the same service you used when buying those shares.

Investment property

If either you or your partner owns a property, then that asset is legally yours/theirs and the other party will have no claim to it – unless contributions have been made. In that case, you will both need to come to an agreement as to how the appropriate party will be paid back.

If you jointly own the property, then you may choose to sell your share to your ex-partner, or buy them out.

Savings accounts

If you plan to transfer money to your ex-partner as part of a financial settlement from a fixed-rate account, then you must first notify your bank so that you do not lose interest. If you are transferring from a normal savings account then you don’t have to give notice.

You should now be fully are of all your legal responsibilities and the claims you can make when it comes to splitting both shared and individual assets when divorcing. We understand how distressing divorce proceedings can be and that is why we have put together this comprehensive guide so that the process can be as amicable, straightforward and stress-free as possible for both you and your ex-partner.

Kerry Smith is the Head of Family Law at K J Smith Solicitors, specialist family law solicitors in Reading that deal with a wide range of issues, including divorce, domestic violence, civil partnerships, and prenuptial agreements. Kerry has over 15 years experience in family law and is recommended by the Legal 500 guide to law firms in the UK.

Cohabitation – Why The Law Needs Changing In Order To Protect Modern Families

While marriage is still popular, cohabitation outside marriage is indisputably on the rise. In fact, over the last twenty years, the number of people living together outside marriage has approximately doubled. The level of protection offered to unmarried couples in England and Wales in the event of a separation, however, has not. Scotland does have some recognition of unmarried partnerships, but even so it has nothing like the concept of “common law marriage” which many people believe does exist.

The rise and rise of cohabitation 

Back in 1996 there were about 1.5 million cohabiting couples in a UK population of about 58 million people. In 2017, there are about 3.3 million cohabiting couples in a UK population of about 66 million. It’s unclear what has fuelled this rise. Certainly living together no longer carries the social stigma it once did, but just because you can do something doesn’t mean you necessarily want to. Perhaps the (potential) expense of weddings or the prospect of having to go through a divorce is making people wait longer and think harder before they decide whether or not they want to “tie the knot” at all, let alone with whom. Whatever the reason, the fact remains that increasing numbers of couples are cohabiting rather than marrying or entering into civil partnerships and yet the law relating to such relationships is essentially conspicuous by its absence.

There is no such thing as “common-law marriage”

In legal terms, marriage is a contract between two parties, which creates duties and obligations between them. As part of the marriage contract, couples agree to pool their assets and hence when a marriage is ended through divorce, assets are divided between the separating halves of the couple on the basis of law and precedent. This is by no means a perfect system and in the real world, the nature of divorce may be that neither party feels completely satisfied that the deal was fair, but it does at least offer some level of protection for people in situations where there is clear financial disparity between the partners. Contrary to what about two thirds of people appear to believe (according to a recent ComRes poll), there is no such thing as common law marriage and hence there is, currently, practically no legal protection for those ending cohabiting partnerships in England and Wales and very little in Scotland.

Lack of legal protection exposes cohabiting partners to financial risk

When couples cohabit outside of marriage there is no automatic agreement to pool assets and there is no formal process to follow to disband the union. Hence, dividing assets can ultimately turn into a matter of proof of ownership plus practicalities of possession. This is probably most evident when it comes to property. If the house is in the name of one person, then there is a high degree of likelihood that, under current laws, they will keep full ownership of it, even if the other party has contributed to the mortgage. There are some circumstances in which a party could claim a “beneficial interest” in the property, but these are limited. Given the strength of the housing market and the rise in cohabitation, this in itself would seem a strong argument for the government to act on the urging of both members of the public and members of the legal profession, including Baroness Hale, the president of the UK’s supreme court and introduce much stronger legal protection for couples ending cohabiting relationships.

Author Bio Kerry Smith is the head of family law at K J Smith Solicitors, a specialist family law firm who deal with a wide range of issues including divorce, domestic violence, civil partnerships and prenuptial agreements.

Divorce Rates in the UK Rise But Stay Well Below Their Peak

The year 2016 saw the number of divorces amongst opposite-sex couples rise by 5.8% to 106,959, although this is still about 30% off its 2003 peak of 153,065. When considering the reasons for this, three possibilities clearly stand out.

Practical difficulties of divorcing

Marriage is intended to be a lifelong commitment and exiting that commitment can lead to all kinds of expensive and challenging complications. While some of these could be reduced by the introduction of “no-fault” divorce, possibly together with a greater awareness of and clarity around pre-nuptial agreements (pre-nups), others are far more difficult to resolve.

The most obvious example of this is the division of property and the practical consequences of dividing a household, many of which revolve around the fact that adults living as a couple can generally live more cheaply than two individuals living in their own homes. These difficulties can increase exponentially with the arrival of children, particularly in their pre-school years, when the need for childcare is at its greatest.

Rise in cohabitation

When couples cohabit outside of marriage, they can go their separate ways without having to enter into formal divorce proceedings but this has both advantages and disadvantages. On the one hand, it means that couples without children can simply agree to part company and move on, while couples with children can make their own arrangements for their future care and maintenance. On the other hand, when couples split on less-than-amicable terms, this can lead to difficulties in dividing assets fairly.

For example, while there are certain situations in which a partner whose name is not on the deeds of a property may be held to have a “beneficial interest” therein, there are certain, specific, requirements to be met in order for this to be recognized, general help, financial or otherwise, is highly unlikely to qualify. Because of this, it is strongly recommended for co-habiting couples to have formal agreements in place regarding ownership of assets, at least significant ones such as property.

Later marriage

For much of history, people have been encouraged to marry as early as possible for a number of entirely practical reasons. Women, in particular, often needed to marry for economic reasons, as the novels of Jane Austen show only too clearly. In modern times, however, women have much greater opportunities for earning an income and as such are under less economic pressure to marry.

Similarly, the fact that women can now reasonably expect to be able to have children well into their late thirties and even early forties also reduces the need to marry at a younger age as does the fact that having children outside of marriage is, by and large, socially acceptable. Putting all of this together means that instead of marriage being the time when couples can formally start to live together, in their first home, it is more likely to be a milestone in a relationship after couples have already lived together for some time and, in simple terms, have already established that they can do so successfully, hence are less likely to divorce.

Fletcher Day are a full service law firm based in Mayfair, London. There team of divorce solicitors in London can advise on a range of matters relating to family law including divorce, prenuptial agreements, civil partnerships and separation agreements.

Reasons to Consider Entering into a Prenuptial Agreement

Reasons to consider entering into a prenuptial agreement 

Prenuptial agreements, often known as prenups, are not (yet) legally binding in the UK, but they are legally relevant. Based on a 2010 ruling, divorce courts will accept prenups as valid, provided that both parties entered them willingly and understood their implications, unless there is a particular reason why it would be unreasonable to enforce them in any particular situation. As the prenup is between the two individuals entering a marriage/civil partnership, it is entirely distinct from the obligation to support any children arising from the union.

 

Prenups have moved out of the celebrity world and into the mainstream

Celebrity prenups (or the lack thereof) have long been fodder for the gossip columns but over recent years they have moved into the world the rest of us live in. While they are commonly associated with situations in which couples have widely different financial values, they can also be used to draw lines in the sand in other situations, for example to highlight anything one of the parties considers a personal possession which they would like to keep in the event of a divorce/dissolution. Setting this out up front can be easier than trying to reach an agreement in the potentially heated atmosphere of a couple parting ways.

 

Realistically, failure is an option

Around one third of marriages end in divorce, which means that even though the odds of success are still on your side, the odds of failure are high enough to deserve to be taken seriously. Even though the UK has yet to implement the concept of “no faults divorce” in the real world, divorce/dissolution can come about for reasons which have nothing to do with fault.

People make mistakes and sometimes couples can agree amicably that their marriage was one of them and move on in a respectful manner. This is particularly beneficial if the split comes after the arrival of children.

 

Mediation and legal advice are the road to success

In principle, mediation can take place before or after a legal agreement has been drawn up. In practice, it probably helps to have it first and keep open the option of further mediation afterwards if need be. Mediation is simply a process by which couples have a full and open discussion of their situation and expectations, which is facilitated by a mediator.

The mediator’s role is to keep the discussion on topic and to help both parties to express themselves and to learn to understand each other’s views until finally they reach a place of agreement, which the mediator then converts into a memo of understanding, which can then be given to the solicitors acting for the respective individuals.

This makes it easier for the solicitor drawing up the prenup to create a document which accurately reflects their client’s wishes and for the solicitor acting on behalf of the other party to analyse the agreement and ensure that it is appropriate for their client. While prenups are like insurance in the sense that they are a product you buy in the hope that you are never going to use them, just like insurance, it can be very helpful to know that you are covered if the need arises.

Fletcher Day are a full service law firm based in Mayfair, London. There team of family law solicitors in London can advise on a range of matters relating to family law including divorce, prenuptial agreements, civil partnerships and separation agreements.

 

 

Family Law and Brexit – What could it all mean?

The British public have spoken and they have made the decision to leave the EU but the ramifications of that decision is still yet unknown but how will it affect family law?

A recent report stated how important the EU laws are on UK family laws but this is all likely to change now the UK is leaving the EU. The courts are already handling a high volume of cases and the departure could make it difficult for the courts to cope even further. Legal aid has been reduced and the courts are going through structural changes which mean that problems could lie ahead.

Many aspects of family law would be affected by the decision. The divorce process is the same throughout the EU and it has been a success but a new UK law would have to be put in place. Suggestions have been made that the new law should be similar to the EU law.

The EU also regulates maintenance proceedings and international child law would also be affected. However, there could be a benefit to the UK leave the EU when it comes to marital agreements because the EU has imposed marital agreements without seeking independent legal advice which has often cause confusion. Therefore, the decision to leave could result in proposals that were put forward in 2014 being implemented and this would lead to England and Wales supporting the importance of seeking independent legal advice as a method of dealing with other issues.

While future implications of leaving the EU are unknown, Resolution has stated that there is no doubt that the future is looking uncertain. Just in the same way as other areas of legislation, family law in the UK is naturally linked to that in other jurisdictions.

The uniformed jurisdictional rules put forward by Brussels for divorce proceedings and maintenance agreements are likely to change but how it will change is still unknown. Any changes to family law are likely to be postponed as the government is unlikely to make it a priority of theirs.

The financial markets have taken a short term hit since the decision was made but if this becomes a more prolonged issue then this will cause problems for family finance. When it comes to divorce and financial problems, all of this will have to be taken into account.

Regardless of the outcome, Resolution has made it clear that they will co-operate with the government as well as others to help guide family justice as well as offer the support required by members. They will also offer relevant information as well as resources in order to help them handle the way in which things map out following the referendum.

Obviously, the impact of Brexit is unknown but the UK could take up to two years to leave the EU. Therefore, it could be important for the UK government to reflect on the result and how it can achieve the result.

Author Bio: Kerry Smith is the Head of Family Law at  K J Smith Solicitors who are specialists in family law, experienced in all matters relating to divorce, civil partnerships, cohabitation disputes and collaborative law.

Modern Reasons to Get a Prenuptial Agreement

When prenups first became popular, they were often seen as a weapon by which wealthy spouses took advantage of less sophisticated (and less wealthy) partners. Therefore, it’s not a surprise that so many people today have an instinctively negative reaction when they hear the term “prenuptial agreement.” To make it worse, it seems like every week we are hearing about another messy divorces amongst celebrities and their high-stake prenups. As  mentioned in Wendi Schuller’s  new book, The Global Guide to Divorce, prenups can be crucial to your “happily ever after”, whether you stay married or get a divorce.

The Global Guide to Divorce also relays that marriage and divorce is evolving with the times. Modern-day marriage is not only a romantic relationship, but is also a business partnership. In fact, marriage throughout history has been an arrangement of sharing property, while the romantic aspect of marriage is a relatively modern development. Similar to a true business partnership, prenuptial agreements are used to protect both spouses.

The divorce attorneys in Scottsdale suggest prenups for people in their 30s or older with any substantial assets, children or a former spouse. Prenuptial agreements are particularly useful for people who are entering into a second marriage. In the case of remarriage, one or both spouses may already have significant assets, and may want to arrange that family members from the first marriage inherit property and assets.

Modern-day couples are obtaining prenups for five main reasons:

  1. Spouses who have children from a prior marriage are often concerned about their future financial protection. A prenuptial agreement can be used to ensure your children (and your spouse) will be taken care of as you wish, if something happens to you.
  2. A prenuptial agreement can protect against joint liability on individual debts. For example, if a spouse owns a small business and personally guarantees loans, a prenup can limit legal responsibility and preserve assets for both of the spouses in the marriage.
  3. If one spouse co-owns a business, a clear succession plan is often necessary to obtain financing. A prenup can make running the business easier as well as clarify what happens if the business owner dies.
  4. By clearly showing how assets will be titled during the marriage, a prenup can facilitate gift and estate tax planning.
  5. Although laws are in place to protect inherited property at the moment, they can always be challenged or changed. Address any inherited property beforehand, in a prenuptial agreement. You’d hate to see your grandparent’s beach home just because your spouse is entitled to half of it.

Experts believe that prenups will become more socially acceptable in the coming years. Both men and women will be more interested in safeguarding their future by beginning their marriage with a prenuptial agreement in place.

Amanda Rumore, author of this article, is a family and parenting expert. She has worked throughout the US in marketing and public relations for a variety of industries, as well as worked for various media outlets. Amanda currently resides in Phoenix, AZ., where she is a freelance writer.

 

 

 

 

Negotiating a Settlement in Divorce

In divorce negotiations, who gets what asset can be the most difficult part of the whole process. People sometimes have the winner-take-all mentality, which leads to prolonged divorces. Negotiating is like a dance. One person takes a step backwards and the other one goes forward. The partners move in sync and sometimes apart from each other. They dance around some of the lesser issues to concentrate on what is most important to them. As in dance – flexibility is important. If your spouse is not going to budge on one item, go after something similar, or two smaller ones which may have an even greater value when combined. Here are tips for negotiating a fair divorce settlement:

1. Lawyers and mediators are quite skilled in assessing and dividing property and investments. That said, consider having a neutral financial consultant on-board to help with a fair distribution. They can look at the assets in totality and advise a balanced split so one party does not get mainly retirement pensions and the other one cash. A few women now in their 50s who got more in liquid assets and very little in retirement benefits are worried about their futures. Who knows what social security payments will be in the next decade and beyond.

2. Look at what your present needs are in order to determine what assets are most advantageous to you. If you are a few decades away from retirement, it may be in your best interest to receive a bigger chunk of liquid funds. This way, you can buy a house and pay off the mortgage. Being free of a mortgage puts more money in your pocket even with property taxes, upkeep, and insurance bills. Perhaps student loans could be paid off if getting a lump sum settlement. If unsure what to do in your circumstance, meet with your own personal financial advisor for guidance in choosing which type of assets you would like.

3. Know the tax consequences of splitting assets, especially retirement ones. –

See more at: www.divorcemag.com/blog/negotiating-fair-divorce-settlement#sthash.8JINRiwb.dpuf

 

Mediation in Divorce

Family mediators are calling for more practical information and support for divorcing and separating couples after a recent survey by the Family Mediators Association revealed that couples are struggling to access the information they need to help them make informed decisions about their family and financial issues, with up to 38% of people unaware that there are more ways to resolve these issues than going to court or using a solicitor.

The poll, conducted by YouGov in support of Family Mediation Week, revealed that people’s satisfaction with the resolution of their issues is related to their access to information about their options – survey participants who were happiest with the outcome of their separation were those with the best access to information about the options available to them. Nationally, 49% of respondents reported that they felt positive about the outcome of their separation; this rose in areas where participants had the best access to information, but fell in parts of the UK where participants were unaware there were other options available. Nationwide, 15% of people were unaware that there were methods of resolution other than lawyers or court available, which rose to an astonishing 38% among younger respondents.

Additionally, the survey revealed that almost a quarter of separating or divorcing couples pick a method for resolving their issues because it was the cheapest option available to them, but that few couples are aware how the costs of different resolution methods actually compare. Figures from the Ministry of Justice show that mediation tends to be far less expensive than many of its alternatives, but only 2% of respondents reported that they used a family mediation service compared to a total of 35% negotiating through court or solicitors, showing that couples aren’t always aware there is a cheaper alternative.  In light of these results, family mediators are calling for increased availability of practical information and support for separating couples trying to decide how to divide their assets or organise time with their children.

Beverley Sayers, chair of the Family Mediators Association, says: “This research reinforces what many of us in the mediation profession are experiencing on a daily basis. People simply aren’t aware of the options available to them when they separate or divorce, but – as the research findings show – people who make informed decisions based on information and knowledge are generally happier with the outcome of their separation. For more information, please visit:  Family Mediation Week  The Family Mediators Association  Ministry of Justice

Annis Cordy or Karen Tinkler at The Partners Group  Tel: 01904 610077

Email: annis@partners-group.co.uk    karen@partners-group.co.uk

 

 

 

 

First Meeting with Divorce Attorney/Mediator

Getting records together for your new divorce solicitor or mediator is a first step in the divorce process. Sometimes one’s financial state seems to be a jumble of loans and assets and the solicitor will have to get a general idea of the situation. A financial advisor may be called in to sort out the records and give the solicitors an idea of the assets involved in the case. Do your part by getting copies of bank statements, loan papers, taxes and whatever else you can lay your hands on to get the ball rolling with your divorce. Your solicitor or mediator may give you a list of what is needed for your initial encounter. The following information will get you started on what data to bring with you.

The best advice is to bring everything:

  • Financial records include taxes paid, both personal and business.
  • All loans, including student ones are needed. Did either set of parents loan money for example, as a house down payment or for a credit card bill?
  • The amount of your rent or mortgage (plus balance owed on the mortgage).
  • Do either of you pay anything for children from previous relationships?
  • List all bank accounts/investments/pension plans with their account numbers and balances. Do either of you have any automatic deductions withdrawn from pay checks? Jot down any stocks, bonds, or mutual funds. Do either of your work places contribute to investments or retirement plans?
  • Could there be an off shore account or does some money appear to be missing?

Next, think about some other assets that you have either jointly or individually. List assets with approximate net worth:

  • Vehicles with model and year
  • Value of property including marital home. Mention any bolt holes and holiday homes, including timeshares
  • Art and any big ticket items

Jewellery and gifts may be exempt from this list, but check with your solicitor.

The next part is for giving background information to the various divorce professionals and may be helpful in considering shared care, and in determining maintenance. Our custody evaluator also wanted a copy of this report and I may have gotten physical custody partially as a result. A Cafcass officer may ask for it too.

  • Write up the history of your marriage with the highlights. Was there any type of abuse? Do the spouses or children have any chronic illnesses, drug or alcohol usage, or a police record?
  • Did either spouse have affairs? Was there any neglect?
  • Is a child a special needs one, who requires much specialized care?
  • Is anyone in ongoing therapy?
  • What is both of your recent work histories? Did one spouse leave a lucrative career to stay home to raise the kids? That spouse may need training/education to get back in the workforce.

Think about what expenses that you and the children have which may affect maintenance and child support payments. This list also indicates your standard of living or life style, so be sure to include travelling and personal upkeep costs.

  • List children’s expenses such as tuition, tutoring, activities, sports, camps, class trips, clothing and general expenditures.
  • What do you spend on weekly groceries, eating out, entertainment and various activities?
  • List all memberships, club or organization fees, charity donations, subscriptions and any incidentals.
  • List payments for utilities, internet, phone, TV and routine bills.
  • Do you have any job expenses such as transportation, uniforms or anything else?

The point is to mention all expenses and to have your solicitor understand your complete financial picture. The marital history can affect the distribution of assets or visitation schedule, particularly if abuse was present.

Originally published in The Divorce Magazine  thedivorcemagazine.co.uk

Wives Bringing Their Divorces South for Better Settlements

London courts are increasingly getting a reputation for being more generous when it comes to divorce payouts. This is creating something of a North/South divide when it comes to divorce, as more and more wives seek to have their cases settled in the South in the hope of achieving a more favourable settlement.

Family law firms across the country have reported observing this trend, with some even suggesting that there could be a “maintenance map” illustrating likely size of divorce payouts and length of maintenance arrangement terms across different areas of the UK. London judges, in particular, are generally perceived as being more likely to favour settlements that will see spouses supported financially in the longer term, as opposed to shorter fixed-term maintenance orders.

Courts not just in London but in the wider South East region if not the South as a whole also have a reputation of favouring the wife when it comes to divorce. By contrast, Northern courts are perceived as less “pro-wife” and more in favour of the husband when it comes to settlements. Even within a region, however, there is a lot of variation from court to court and from town to town. Some courts favour an equal split in assets with no ongoing maintenance arrangement in order to give both spouses a clean break. Others favour long-term, regular maintenance payments from the more financially independent spouse to their former partner. Traditionally, wives (who have most commonly been the financially dependent half of a marriage in the past) could expect such support payments to last until they remarried, but maintenance arrangements are now increasingly becoming fixed-term affairs. Once again, there is a lot of variation between different courts, towns and regions as to how long these tend to last.

The divorce system is designed to reach settlements on a case-by-case basis, supposedly delivering an appropriate outcome for each case based on the needs of each individual involved. Nonetheless, research suggests that the idea that wives can receive better payouts from London courts than they could elsewhere in the country is more than just perception. Compared to the North, it seems those having their cases heard in London are more likely to successfully secure marital assets as well as ongoing financial support payments from their former partners.

According to Nigel Shepherd, formerly chairman of family law organisation Resolution, divorce rulings can be something of a “lottery.”  “The upside of our discretionary system,” Shepherd said, “is that it is designed to be flexible so judges can tailor the outcome to the needs of the parties. The downside of that is the lack of consistency or certainty as to outcome. It varies tremendously.”

Some people are essentially shopping around to find the most favourable place to have their divorce cases heard. However, this may prove counter-intuitive, as the process of looking around and having the case heard elsewhere can increase costs and cause delays.

This article was contributed by K J Smith Solicitors, specialists in family law, with offices in Henley-on-Thames, Windsor, Reading, Basingstoke and London.

 

 

Avoid these Legal Traps in Divorce

It is easy to make some mistakes during divorce and not realize that some rules are being violated. Some common legal traps of divorce that trip up people occur when they do not realize that they are violating basic rules.

During the divorce proceedings, here are a few things to keep in mind:

  • A big no-no is taking a child across the state line or out of the country, even during the proceedings. Permission is required from the other parent and a notarized statement if going abroad. I got accused of planning a trip overseas without my ex being informed of it ahead of time. Luckily all of our communication went through a mediator and he resent the original e-mail that he had indeed notified my sons’ father.
  • When selling something that was bought with marital funds, check with your attorney regarding the legality of this first. I apparently violated this by selling my sons’ play structure without my spouse’s permission during divorce. My children and I were moving out of the marital home during our divorce and the realtor said to get rid of it ASAP. I put an ad in the newspaper and let the boys split the $100 received for their play structure. My spouse was livid and my attorney gave me a lecture. I insisted that my ex would have to collect any money he felt that was owed to him, directly from his sons.
  • As you are finalizing your divorce, put as much detail as possible in the divorce decree. It is the little items omitted that can cause bumps in the road when the divorce has been finalized.  Please read more
  • divorcedmoms.com/articles/how-to-avoid-common-legal-traps-of-divorce

Using Social Media during Divorce and Beyond

During divorce and family break up be careful what you do on social media and other online sites. It can stop you moving on, and could even mean losing time with your children.

Shared care

You may be selective of what goes on your social media sites, but that does not mean your friends are too. They may be posting party pics from the hen party or birthday bashes. Looking like the party girl is not going to help you look like a responsible parent when making shared care arrangements.

Remember friends may not have strict privacy settings or may share intimate details with their pals. Put on your site, or allow friends to post, only what would be okay for your family to view. If you have a spiteful ex, don’t give him ammunition from social media sites to use against you. Stay off dating sites until the divorce is finalized. I heard of a man who posted on a dating site he was single with no children, when he had two sons. A single family friend spotted it and a copy got to the mum, her solicitor, the sons’ therapist and the custody evaluator. The father ended up with limited visitation and no overnights.

Avoid vengeful and makes disparaging comments about your ex. If he says abusive things to you, or tries to discredit you online, keep a record, in case you need evidence through the courts.  www.maypole.org.uk/using-social-media-in-divorce/

Preparing for Divorce

Your marriage may be turbulent – but you may not be sure if you want to jump ship. Whatever the outcome may be – reconciliation, separation or divorce – there are steps to take in the interim.

–  Get a hold of financial records including tax returns, bank and credit card statements.

Find retirement and investment accounts, plus a life insurance policy. Make copies and put them in a secure place and on a flash drive for easy access. Gather information on loans, mortgage or rent, and other monthly expenses to get a full financial picture. Scrutinize joint credit card statements to see if your spouse has been buying presents or spending marital money on a lover. Some spouses have been successful in getting these expenditures reimbursed during divorce proceedings.

If there seems to be chunks missing, then possibly your spouse has been liquidating assets or “giving” them to family and friends. After the divorce, these “gifts” would be returned to your ex-spouse. During financial disclosure in divorce, a forensic accountant may be brought on board to investigate any financial discrepancies.

Obtain a credit card in your name only. If you have one already, then remove your spouse as a signer on it, if she has that privilege. Having a credit card in one’s name helps to build up a credit rating which is especially crucial once single again. Order a credit report to correct any mistakes, see what the number is, or if your spouse has caused it to take a nose dive for some reason.

If you find yourself in an emergency, then a credit card is invaluable. I could not have managed during the six weeks from when my husband left, until the interim support started, without it.

–  Open a bank account in your name only to ensure that you have access to funds when the divorce commences.

I had not done this, so did not have any cash. I had to ask my mum for a hand-out.  Joint accounts can temporarily be frozen during divorce, so you want to make sure to have a cash fund available.

Set up direct payments from your joint banking account to utilities, mortgage lender, the phone company and other services so they get paid in case it is not frozen during proceedings. It makes life easier if one is not scrambling to pay these before interim support starts. Since I had worked at our jointly owned business, I did not have an income stream to make these payments and received disconnection notices. If they had been automatically paid, this would not have happened.

If you sense that a divorce is imminent, then cut down on expenses and tuck away the amount that you would have spent on lunches out, clothes etc.

Keep close tabs on bank accounts or investment balances, to make sure that your spouse does not withdraw a large amount and then immediately file for divorce. Some savvy women bought themselves gift cards to grocery stores and to other necessary places when feeling that their marriages might be ending soon.

Some women had facelifts and breast implants done while still married right before heading for divorce. A few furious husbands tried to get a partial reimbursement for these procedures, but were denied, since they were done while still married. I put off expensive dental work that I could have done during marriage. It was not covered, so I had a big bill for it when newly divorced.

A little pre-planning can make for a smoother divorce. One’s solicitor will appreciate having financial information right in the beginning of the proceedings.

Originally published in The Divorce Magazine  thedivorcemagazine.co.uk

 

 

Ways to Negotiate Child Support

States have a formula to determine the amount of child support, but this is not an arbitrary figure. Negotiations can increase this amount. Parents have the right to come to their own agreement on child support and not rely on their state’s guideline. Submit the agreement to the court in order to make it official, in case there is difficulty in collecting it at a later date.

  1. Child support is non-modifiable (no changes allowed) or modifiable (may be changed at a later date). I chose non-modifiable because I did not want to deal with any divorce issues again. If it looks like your spouse might be in for a big promotion, or his artwork is starting to sell, then modifiable may be the right choice. Then you can go to court when this happens to ask for an increase. If your husband has a good job and you think that might change, then you may choose non-modifiable so the rate does not dip. The judge looks at the potential earning ability of both parents as part of determining child support.
  2. If the state’s guideline for child support seems too low, consider working with your spouse on this issue. If you are having a court divorce, it is hard to know how the judge will rule on it. Perhaps a spouse would take a few more household items and artwork in exchange for a slightly higher child support amount. Go online to your state’s “calculator” to get an idea of what to expect before the negotiation. Wish I had done that.
  3. Get documentation and financial records pertaining to your children together for negotiations. Figure out your expenses including your rent (the kid’s shelter), food, clothes and activities to show why you would require a higher rate for support. Offer proof with receipts paid for lessons, activities, and other expenditures relating to the children.  Please read more…. divorcedmoms.com/articles/10-things-to-consider-when-negotiating-child-support

Custody Evaluation during Divorce

What is the Custody Evaluation Process? The whole process takes several weeks before a custody determination or Parenting Plan is done. The Custody Evaluator interviews the parents and children separately. The Custody Evaluator may request that you bring to your first meeting, a history of your marriage, specifics on children, and if there was infidelity or abuse. She is not a therapist and this is not the time to spill your deep, dark secrets. All of you will undergo extensive personality testing, including the MMPI (Minnesota Multiphasic Personality Index).

Do answer these questions honestly and not how you think the Custody Evaluator would want you to. My friend Jerry’s friend administers this MMPI and he took this test as an experiment. First go around, Jerry answered how he thought his friend would like it and what would make him appear great. Then the second time, Jerry did the MMPI honestly, with how he perceived himself. What a difference between the two. The test administrator told Jerry that he got very low marks on the first test. When he answered exactly how he felt, he aced it and was rated a happy, stable person.

When I took the test the thing that helped me to be seen as a “happy person” is that I did my testing outside in a lovely courtyard. The birds were singing, flowers blooming, so I was in a calm state taking these battery of tests. See if you could take your tests outside of the office with nature around you. Do meditate, watch a comedy, or whatever it takes to get you in a calm, centered state before doing each test. The results of these tests help determine shared time in custody, so do not do them in a panic. You may be asked to say what the Rorschach Inkblot pictures seem like to you. If one conjures up several images, do pick the happier one, the circus over a crime scene. Other tests are to draw a picture with each short paragraph, or tell a story around a picture shown. Again pick the more positive ideas for these tests, no blood-sucking zombies, please. A psychologist advises people to think of a happy scenario for each of these stories and drawings. The dos and don’ts of custody evaluation     Please read more…divorcedmoms.com/articles/the-dos-and-donts-of-custody-evaluation-in-divorce

Tips to Avoid Post-Divorce Complications

Many people expressed surprise that once divorced, the relationships with exes were anything but over. They felt waltzing out of the court room or solicitor’s office meant freedom and a totally new life. Post-divorce experiences with former spouses depend upon many factors, such as being caught up in the blame game, or wanting to extract revenge. Sometimes laying low and staying off your ex’s radar is a viable solution.

Are you giving your former spouse ammunition by spreading your divorce story all over town? My divorce solicitor said “Don’t talk about your ex at all to anyone. Anything said can come back and bite you on the bum.” She does not even share personal aspects about herself to casual friends. This solicitor has witnessed many horror stories with post-divorced people blabbing too much to others. I followed the WWII saying, “Loose lips sink ships” as my motto.

Hazel got slapped with a slander suit months after her divorce. She had been tight lipped post-divorce and did not see this coming. Slander is making false statements about someone else to a third party. Even though the onus is on the person initiating this lawsuit to prove the allegations are false, it still involves time, legal expenses, and stress to the person accused. Slander can lead to defamation which endangers some else’s reputation, job with potential financial loss, and standing in the community. If the person filing a defamation lawsuit proves false statements damaged his livelihood then hefty fines and possible jail time can be given to the former spouse. Do not even whisper any rumors, just keep your mouth shut. Hazel called her collaborative solicitor who could not defend her on this post-divorce charge although helped Hazel get a new one. The new one worked with both parties and drew up a legal gag order for BOTH of them. Hazel guessed the leaks were the two sons who talked to teachers and friends’ parents. Also well-meaning friends defended Hazel to her ex’s co-workers, so a lot of gossip was passed along too. Hazel plugged these leaks by threating her boys and friends to keep quiet. She did most of her confiding after that to a psychologist friend and her life went more smoothly.

Libel is stating false allegations through writing. It also includes oral remarks made through the media, such as radio interviews. Celebrities occasionally sue newspapers for reporting what they say are untrue stories, such as having an affair. Then it is up to that media source to prove that it is a fact. Sometimes there is a private settlement and the celebrity drops the charge. Your solicitor or mediator will strongly warn not to post anything damaging about your former spouse on social media. Just do not mention your ex on any site to avoid possible libel. Do not let anyone take compromising photos of you or post comments that could be misconstrued or misinterpreted on social media. Photos and comments regarding excessive partying on social media can and have been used as evidence post-divorce to go to court to amend custody arrangements. You want to be viewed as the reliable parent you are, and not someone whose priority is mainly elsewhere (nightclubs).

There are abusive ex-partners who do not want to let go no matter what. One way to get out of their web is to relocate if this is feasible. This works well if you moved when getting married, do not have family ties in that city and can work in another locale. Keep your solicitor in the loop if lawsuits seem imminent. Respond, rather than reacting to whatever they may throw at you. One cannot change other people, only one’s own actions and responses. Rejoice when this type of ex-spouse remarries, because their focus may lessen on you. A supportive network and having fun is crucial in maintaining sanity post-divorce.

Originally published in The Divorce Magazine  thedivorcemagazine.co.uk

 

 

 

 

 

 

Quit-Claim Deed in Divorce

 A quit-claim deed ends a person’s claim or interest on a property (grantor). The property transfers to the recipient (grantee). In divorce situations when one spouse receives the marital home, then the other spouse often signs a quit-claim deed to make a clear transfer of it. This does not release responsibility for future mortgage payments for the grantor if both spouses’ names are on the mortgage loan. If the grantee reneges on the mortgage, then the loan company can go after the grantor who signed the quit-claim deed. Often, the grantee is required to refinance the house solely in her name during the divorce proceedings, to prevent this possible scenario for the husband at a later date. If you sign a quit-claim deed in your divorce, make sure your name is removed from any outstanding loan on the property.

When Elena bought her husband out of his share of a house jointly owned with her mother, the divorce lawyers had the husband sign a quit-claim deed. The house was completely paid, so no need for refinancing. Her mother owned a small house out of state, so the lawyers had the husband sign a quit-claim deed on that as well. The husband had no ownership interest in that house, but Elena’s lawyer did not want the husband to try to cause any difficulties post-divorce when the mother died.

When there is a business involved, a quit-claim deed is usually signed in a divorce. This may be when one spouse is buying the other out of a jointly owned company. This action is also done when one spouse’s parents own a business and it needs to be clear that their ex son or daughter-in-law will not be able to lay any claims to it post-divorce. A quit-claim deed prevents trouble down the road after  a divorce.

Obtaining a Passport for Your Child in divorce

There are subjects to bring up during the divorce proceedings to make life easier down the road. When  big issues, such as custody and division of property are looming in the forefront, it is easy to forget about smaller ones. If your child’s passport is up for renewal, or a new one needs to be issued, then have your spouse sign a notarized letter right then and there to give you permission to obtain one for minor children. There is a notary in every attorney’s office.

If you had an acrimonious divorce and now you want to take your child out of the country, this could be a touchy situation. If your child is 16 or older then she can get her own passport without both parents’ permission. If under 16, then both parents must go to the passport center together, with the necessary documents, such as a birth certificate. If this is not feassible, then one parent may give notarized permission for the other parent to obtain the passport for their child. If your child is close to 16 and her passport is expiring make sure that there is at least six months left on it. One family was turned away from getting into Argentina when their children had only a few months left on their passports.

If you have a judge involved in your child’s life then the US Passport Agency will allow a judge to send a statement giving permission for just one parent to obtain a passport for a minor. This could be the judge who presided over your divorce case. Your teenager can petition the court herself for the right to have just one parent obtain her passport. In one case a 15 year old had a judge for an unrelated issue. When his father refused to participate in his passport renewal, then that judge wrote a note on official court stationary to the US Passport Agency allowing the child to get a passport with just the mother. The mother had a notarized copy made and carried that with her when she left the country to avoid any complications with customs. When one parent takes a child out of the country, then notarized permission from the other one may be required by the airlines or customs. If you do not have contact with your ex-spouse, then e-mail the court designee (court moniter in my case) and carry their response that they notified the other parent. I took a copy of the court moniter’s e-mail and that worked well.

If you have your child’s passport in your possession and the other parent asks for it to plan a trip, be careful if you think that there could be a risk for kidnapping. Consult your lawyer if you are in this particular circumstance.

Joint, Physical, Sole and Legal Custody

Joint, Physical, Sole and Legal Custody have distinct differences and it is important to understand these during divorce negotiations.

Sole Custody can be granted to one parent when the other or the partner is abusive or impared.  The courts across the country are moving away from granting this type of custody and are giving Legal Custody to both parents. In sole custody, the  one parent has complete say in the child’s decisions and does not have to consult the other one.  If one parent is completely out of the picture, then this is when sole custody is more likely to be awarded.

Legal Custody is usually granted to both parents and this allows them to make decisions regarding the child’s medical, educational, religious and schooling even if one parent is in jail.  The incarcerated parent can still have imput on the child’s upbringing. When a parent has alcohol or drug abuse, then visitation may be supervised, but legal custody can still be awarded.  If a parent makes important changes, such as a school, the other parent can take that parent to court if he was not consulted in this decision.  Although my children had visitation, I was reprimanded for not informing my son’s father that our child had gotten a job during our divorce. If the other parent is abusive, Legal Custody can still be awarded, with a court mediator being appointed.  Then all communication between parents would go through this person.

Physical Custody is granted to the parent where the child completely or mainly resides. This may be that the child lives with his mother during the week and stays at his father’s house on the weekends.  It also is awarded to a parent when there is no overnight visits or in cases where visitation is supervised.

Joint Custody is when the child spends part of the week at each parent’s house or alternates every other week.  It is close to 50/50 and often the parents live nearby to make it easier for the child schooling.

Instances of where  family members, other than parents, are awarded custody are becoming more common.  This is particularly  the case when both parents are impaired or incarcerated.  Then grandparents, aunts or uncles may be granted custody. I personally am seeing this more and more in the public schools. I am having to call a grandparent to pick up a sick child or  ask an aunt to obtain permission to give a medication.