Every separation is slightly different. Some relationships will end amicably, leaving the door open for a potentially collaborative divorce, whereas others, especially those involving high value assets, pension schemes, businesses and income, can be more acrimonious, likely resulting in a more hostile, prolonged situation. In many cases, the energy between former spouses or partners will have a major bearing on how quickly things end up being resolved.
If you’re going through divorce or separation, you might already be wondering, do you need to go to court for divorce? In our latest blog, we’ll take a look at the common stumbling blocks during separation and how you might be able to avoid both the pitfalls and a potentially expensive journey to the courts.
What are the Possible Barriers to a Collaborative Divorce?
The advent of no fault divorce has not only simplified the process but has also helped to remove much of general negativity. However, the two biggest obstacles to a collaborative divorce are likely to come in the form of making a financial arrangement in divorce and formalising child arrangements. Even the most amicable of separations could be derailed by these two divisive areas — with the potential for hostilities being magnified further by factors like money tied up in trusts, offshore assets, complex share schemes and more.
Therefore, let’s take a look at child arrangements and financial settlements in more detail.
Achieving a Financial Arrangement in Divorce
The key to reaching a financial arrangement in divorce is often transparency. A collaborative divorce or separation asks that both sides are completely open with each other and are prepared to make compromises where necessary. Full and frank financial disclosure ensures that both parties know what is at stake and minimises the chances of a settlement being challenged down the line. This is especially relevant in cases of high net worth because, while it might be tempting to conceal significant wealth, hiding assets can lead to heavy sanctions down the line and might end up derailing the whole process.
Although it varies — and there can be significant arguments about what is ‘in’ the matrimonial pot — a broad starting point for the division of assets would be a 50/50 split. The other main consideration that will impact on the split is the basic financial needs of the two parties. This includes living arrangements (who lives where) and how much each person needs in order to maintain their existing lifestyle.
In high net worth divorce cases, financial needs tend to be open to interpretation, so even more could be at stake. Finally, individual contributions towards matrimonial assets can also be an important factor, as will other features of significant wealth, such as the treatment of limited companies.
There are many options that a couple can attempt to try and reach an agreement. For example they could attempt mediation, approach collaboratively trained family practitioners, have a round tables meeting, or try arbitration. Sometimes a deal can be done while sitting at their own kitchen table (if the couple feels confident enough to do it).
Once an agreement has been made, the next step is to apply for a financial remedy (consent) order. The consent order makes clear the agreement over division of assets (and may also include details of ongoing child maintenance payments). It’s essential to receive advice from an established divorce and family law solicitor at this stage, to ensure that the agreement is in your best interests and that no important factors have been missed.
Once this phase has been completed, both parties will be able to plan for the future with added confidence and clarity.
Making Child Arrangements
As with finances, the courts tend to adopt a default position that both parents have a shared responsibility for the welfare of their children. Therefore, as long as dependents are not deemed to be at risk when residing with one of the parents, it’s preferred that the duty be shared. However, devising living arrangements that put the children first will hinge upon how easily both sides can communicate amicably and constructively.
Making child arrangements can, therefore, be done without the courts’ intervention. However, it’s important to take reliable advice from a specialist divorce and family law solicitor during the entire process. This will ensure that you fully understand your options and receive guidance suited to your circumstances.
If you’ve aimed for a collaborative divorce, have attempted mediation but reached an impasse, it might be necessary to apply for a child arrangement order (CAO). Submitting an application to court is the first stage, and the longer it proceeds without an agreement, the more expensive the process will become. Ideally, going to court should be viewed as a last resort for cases where communication has completely broken down and there are complex issues to be determined.
Ultimately, it’s essential to not lose sight of the fact that divorce can be very hard on children. Putting their best interests first and being open to conflicting points of view is the surest way to keeping relations amicable and keeping costs down.
You can read more about childrens’ living arrangements in our recent blog, here.
Can You Use a Mediator for Divorce?
Bridging the gap between former partners could make a difference in how smoothly the likes of both child and high value financial arrangements in divorce are resolved. An independent mediator will ensure that a neutral voice is present, keep conversations focused, encourage compromise, and explore options. A mediator will also look to defuse hostilities and nudge both sides towards a resolution.
Divorce mediation will aim to encourage amicable resolutions towards such practical matters as; where the children will stay during term-time, weekends, holidays, birthdays, the festive period, etc. It can also cover potentially difficult subjects such as name changes, the rights of other family members (such as grandparents), and schooling. Throughout the process, they will look to maintain cordial relations at all times.
Although you don’t have to commit to mediation yet (note the government’s new proposals to make mediation mandatory for child arrangement disputes) the courts will usually insist that both parties have at least attended a mediation information and assessment meeting (MIAM). Divorce and family law solicitors tend to view mediation as an essential tool in overcoming ill-feeling between couples and resolving the ‘big’ issues of children and finance. When those issues include the likes of extensive property portfolios, generational wealth, privately owned companies and overseas investments, a neutral third party can quickly become an even more appealing proposition.
The question ‘do you need to go to court for divorce?’ might even be settled through your willingness to allow a third party to play a neutral role in the conversation.
How to Handle a Contentious or Hostile Divorce
In an ideal world, an amicable approach towards divorce would be the surest route to a quicker resolution. However, this is not always realistic. In some instances, cracks that were present in the lead up to divorce can widen significantly and help to create a difficult atmosphere. When high finance and expensive assets are on the line, it’s not uncommon for the collaborative approach to be seriously tested. Experienced family lawyers will pinpoint the likelihood of a difficult split early in the process, which will inform a strategy that looks to defuse the situation.
If the relationship itself has become toxic, it’s important that you:
- Choose the Right Solicitor: It’s important to enlist the help of a divorce and family law solicitor who is assertive enough to offer robust representation while not risking inflaming the situation. An experienced lawyer will have experience of a broad range of separations and will be able to put your best interests at the heart of their strategy.
- Be Open About Your Relationship: Sometimes it can be hard to see the wood for the trees when talking about a marriage or civil partnership. Try to be transparent about the nature of your relationship and remain open to advice and guidance from a third party who has your best interests at heart.
- Be Positive: Bear in mind the reasons for your divorce and use them as motivation to keep an eye on the future. Divorce is almost always difficult in the short-term but, with the right mindset, can be easier to come to terms with.
- Resist the Urge to get Personal: Throwing insults is almost guaranteed to increase hostilities. If you think that your emotions are getting the better of you, it’s recommended to take a step back, have some time to reflect, and resume talks at a later date. No matter how hard it might seem, being respectful will result in more constructive conversations.
- Listen to your Former Partner: You might not agree with everything being said but there are two sides to every situation. Listen to opposing views and try to remain diplomatic.
- Be Accountable: It’s easy to get bogged down in finger pointing but this will just drag the process out even longer. If you want to de-escalate a heated conversation, it might be necessary to take responsibility for some of the things you have done in the lead up to the separation.
- Be Prepared to Compromise: A divorce will demand a little give and take. Rather than seeing this as a sign of weakness — or an admission of culpability — see it as a chance to move the process along and get closer to the end goal.
In some cases, the toxicity of the relationship might make further help essential. If you’re coming out of a coercive or controlling marriage, it helps to have a good support network around you. That could mean anything from getting access to a trained counsellor to reaching out to any friends and family who are not actively involved in the split.
Ultimately, the more support you have, the easier you should be able to deal with the end of the relationship. Additionally, a specialist solicitor will be able to explain all of your options while helping you to reach an amicable resolution. If this is not possible, it’s essential to find someone who can fight your corner when needed.
Complex Divorce Made Easier with Lowry Legal
If you’re wondering ‘do you need to go to court for divorce’ this might be the right time to receive reliable legal advice about your circumstances. Lowry Legal is a family law firm that specialises in helping clients with high net worth to handle all aspects of divorce. We understand that the breakdown of a marriage or partnership can be a difficult time — especially when it comes to the division of significant assets like properties and businesses, the welfare of children and the need to sensitively handle finances after separation. Whether you’re optimistic about reaching an amicable understanding with your former partner or are expecting a more testy situation, we have the experience and skill to listen to your circumstances and safeguard your financial future.
We’re committed to putting your best interests at the centre of our strategy to ensure a fair outcome that protects the assets you have worked so hard to build. Along the way we’ll adopt a practical mindset and a jargon-free approach to ensure that you fully understand the options at your disposal and have a clear understanding of the various stages that lead towards an eventual resolution.
Therefore, if you’re looking for a law firm that specialises in divorces involving notable wealth and will get to the heart of even the most tricky situations, you are in safe hands with us.
To speak to one of our professional family lawyers, contact us today, or email enquiries@lowrylegal.co.uk.
