With the way in which divorce is portrayed, it can give very misleading impressions as to how divorce actually works. An example of this is the fact that in the majority of cases, an actual court hearing is extremely unlikely. For most people undertaking mediation as a prerequisite, in general terms, before going to court, agreements about children, money and property are likely to come about throughout this process rather than within a court setting. However, if it does go to court the law is not biased toward one party or the other.
How do we split our assets when divorcing?
There are no hard and fast rules as to who gets what when a relationship breaks down and mediation can often help the parties involved come to an arrangement between them as to how any assets will be split. If an agreement cannot be reached and it does go to court, then the court will not look at who has put what in but rather what the court feels each party will need for the future. However, it is likely that both parties will end up having to live on less money than they were used to when they were within the relationship so that is something that needs to be accepted by all involved. There are also no rewards or punishments for behaviour’s within the relationship. The only time this may be taken into consideration is if there has been extreme abuse or someone is trying to be dishonest and hide what assets they have.
It is important to decide whether you want to divorce immediately or just separate. If you decide upon just separating in the interim and waiting to see what happens, then arrangements pertaining to money, the home and children can still be organised and a separation agreement can be drawn up. Legal advice should be sought in these arrangements however, as once you have signed them, they can implicate any settlements or arrangements if you do decide to divorce at a later date. Separation itself starts the moment that you decide to no longer live together as a couple. You can be separated and still share a home, but it means that you no longer share a bed, cooking or do shopping for each other etc. If you decide upon separation and have been separated for two years, if it does come to wanting a divorce, neither party has to be blamed for the ending of the relationship in this instance. If you have not been separated for two years and decide to divorce, then you have to have been married or have been in a civil partnership for a minimum of one year and one of you has to apply for the divorce as it cannot be done jointly.
How does Divorce work?
There are a couple of things to remember when thinking about ending a marriage. Firstly, are the costs involved when reaching an agreement in court, as they can reach up to £15,000 per person, where the disagreement is around finances. If you were going to court about your children and your finances then it can cost up to £40,000 per party. Arrangements that can be made through mediation or some other means can cut the costs of divorce significantly. Secondly, are the issues pertaining to any children, money and property. These are three very distinct areas that need to be organised separately although will often be going on concurrently. In terms of the ending of the marriage or civil partnership itself, the correct forms need to be filed with the courts where a Decree Nisi or Conditional offer is ordered before continuing to the Decree Absolute or the Final Order. For arrangements surrounding any children, these can start to be put into place before any proceedings through a court and agreements such as who they will live with, contact and access etc. can all be discussed at any time. The division of any money or property however, can only start once the application for divorce has been lodged with the courts. The court itself is unable to make any final financial orders before a Decree Nisi has been issued and any financial orders can only take effect one the Decree Absolute has been given.
If you are divorcing as a result of having experienced domestic abuse then obtaining legal advice as quickly as possible is highly recommended. This is because of the things that can be done and put in place in attempt to prevent any further abuse and protect yourself and children that may be involved. These can be things such as obtaining court orders to prevent your ex-partner from coming to your home or harassing you in any way. There are also numerous charities that can give people, who have been in abusive relationships, advice and sign post them to other services.
What are the things I need to decide before getting divorced?
One of the things where decisions will have to be made is arrangements regarding any children. Both parties will need to agree where the children will live, when and how both parents will spend time with any children and how things that any children need will be paid for. Decisions will also need to be made regarding any property. Will a property that both parties shared need to be sold or both parties move out or will one of the parties remain in the property? Whose name is the property in? If it is either rented or owned then the person whose name the house is in could have legal implications and action may be required to secure a person’s right to stay in the property. When the property is jointly owned, if the property will be sold how will the proceeds of the sale be divided between the parties? Will everything be organised all at once or will it be done in stages? It works better for some people to work things in stages as it’s a better fit with the needs of the family e.g. if children are in a local school and settled etc.
Agreements regarding money will also need to be decided upon. A full list of all assets including cars, pensions, savings etc. as well as all debts should be made and help regarding how these things will be split may be needed. It is important to think about how any joint assets will be divided as well as the contents of the family home. What will happen about assets such as cars? How will any debts be organised? Is one of the party’s going to pay maintenance to the other person? Finally, the how a divorce will be petitioned needs to be addressed. In England and Wales, a divorce cannot be granted just because you are no longer happy but must be due to either adultery, unreasonable behaviour, desertion, two years of separation with consent or five years of separation. Adultery refers to when either of the parties has engaged in full sexual relations with another person however if you have continued to live with the person for more than six months after you have found out about this, then you may not be able to use adultery as a reason for a divorce and are unable to use it as a reason for ending a Civil Partnership. Unreasonable behaviour can cover all kinds of behaviour providing that the person asking for the divorce finds it unreasonable e.g. nobody else has to find this behaviour unreasonable. It can cover all sorts of things from not tidying up or going shopping to violence and insults etc. The vast majority of divorce petitions use this as a reason for wanting a divorce to be granted. In cases of desertion, your ex-partner must have left you against your will and you must have been living apart for at least two years. However, as you can be granted a divorce through two years of separation with consent whereby both parties agree to the divorce as they have been living apart anyway for two years, desertion is rarely used. If your ex-partner refuses a divorce and it does not fit into any of the other categories described, then you may be able to use the five years of separation reason, but you must have been apart for five years. This does not mean because you live in the same property you can’t apply for a divorce as long as you are no longer a couple i.e. sharing a bed etc.
The way divorce stands at present means that one of the parties involved must ask for a divorce from the other party concerned. At times it can feel like blame has been cast and this in itself can cause problems when attempting to come to arrangements regarding children, property and finances. Therefore, it is important to attempt to remove the emotions as much as possible and understand that this is the way in which it must be done in order to have a divorce granted. The parties involved do not have to agree as to who will ask for the divorce and the reasons for asking for one, however it can be useful if that discussion can be had to ensure that the divorce runs as smoothly as possible. Attempt to show a degree of sensitivity with the wording used when citing ‘Unreasonable Behaviour’ as a reason for wanting a divorce, as hurtful wording can make the process that much harder and have a knock-on effect upon coming to acceptable arrangements for other things. Sometimes making a separation agreement and divorcing two years along can make the process less inflammatory and can at times keep things more amicable.
If upon the breakdown of the relationship you are renting your home, it may be necessary to look at the cost of renting elsewhere as it may be that your costs can be reduced by doing so. You could also look into whether the local housing association has any accommodation available in your area that you may be eligible for. This is not always possible as the housing lists are often long but if you are on a low income or have children, then it may help to reduce your costs and give you additional security in the long term. If your home is owned, then the outstanding amount of your mortgage will need to be checked. It is also important to get 3 or 4 valuations from different estate agents to ascertain exactly how much your home is worth. Ensuring that you have a good idea about the local property market is important so you are aware of what you can get for the money that you will potentially have or whether you will need to rent a property instead. Another alternative would be to check how much you could borrow on a mortgage for yourself and whether there would be a possibility of buying the other person out.
The chances are that there will be less disposable income for both parties once you are both living apart. Ensuring that the finances cover the costs of two homes, two lots of bills etc. can be difficult. Therefore, checking how much you spend and on what can be useful as can keeping to a budget for food and social activities etc. Informing council tax can lead to a 25% reduction when living on your own and it may be worth seeing whether you are entitled to any benefits such as tax credits etc. Organising child maintenance either independently or through the Child Support Agency/Child Maintenance Service is also important. If debts are an issue then contacting debt advice agencies can help you with this.
How do me and my ex-partner agree when we are divorcing?
In order to divorce as quickly and stress free as possible, it is always the best idea to come to as many agreements as possible between yourselves rather than relying upon the court to come to each and every decision for you. Not only does this remove both of the party’s autonomy when it comes to deciding what is best for your family, it is also very time consuming and costly. Before a court gets involved, it must be shown that you have both met with a mediator and at least attempted to come to some arrangements regarding any children, property and/or finances in most circumstances. There are three courses of action that can be taken in order to come to agreements; either between yourselves, using a family mediation service or solicitors negotiating on your behalf.
Making agreements between yourselves can be an extremely difficult process as hurt, upset and high emotions can make negotiation very difficult. Therefore, it is important to agree in advance with your ex-partner how and when will be the best time for both of you to have these discussions. For example, it may be finding dates that are mutually agreeable or discussions to take place in a neutral environment or via email. Generally, people do not like to feel that they have been pushed into a corner so both agreeing to even the logistics of the discussions will make it more likely that any discussions will be successful. If there are many different things on which agreements need to be made, organising the priorities first can be useful as dealing with the issues that are causing the most angst and concern for each of you can make any further discussions far easier. In a similar way, if discussions need to take place regarding both children and finances then it may be useful to separate these two things out and discuss them separately at different times and meetings. It is natural that both parties involved would want to sort everything out in one go and immediately but realistically this is unlikely to happen and it may take more time to ensure that things run as smoothly as possible. It is also important to consider the areas in which flexibility may be required and where you feel that you can be flexible on arrangements as it helps to build more common ground and again can make discussions that much more successful. Whilst engaging in these discussions try and keep to the point as much as possible and keep in mind the things in which arrangements need to be made rather than focusing on the emotions attached to the separation itself and if conversing via email, do remember that without being privy to tone and expressions, offence can be taken far more easily.
Another option is to use a family mediation service. This is where your ex-partner and yourself meet with a trained mediator who can help to focus and facilitate discussions between the two of you. Often people value the input of a third party who is not there to cast judgment on anyone but can aid in the communication between the two and help to remove the emotional aspects of the conversation. Most people do have to pay for this service, the rate of which is variable, and the majority of people come to the agreements that they need in between 2 and 4 sessions. It can be useful to ring around different mediation providers in order to compare prices and if they are able to provide mediation through legal aid if you entitled to it.
The third option is to use a solicitor in order to negotiate on your behalf. This is likely to be far more expensive than using a family mediation service but can be quite quick depending upon your solicitor and the circumstances and still avoids the expense and stress of going through the court process. For some people this can be a good way of coming to arrangements as they can feel far safer in having an expert on your side, organising the logistics of the separation and stating your case on your behalf. Again, it is a good idea to speak to a number of solicitors and compare prices and check your eligibility for legal aid if any. Occasionally, depending upon the Law firm, there is the further option of using a collaborative lawyer which is a mix of family mediation and traditional negotiation through a solicitor. These lawyers are specially trained and would not be able to represent you in court but would work with yourself and your ex-partner as well as their collaborative lawyer, in face to face meetings in order to come to arrangements.
What happens once an agreement has been reached between me and my ex-partner?
Once agreements have been made, it is useful to right down what has been agreed upon. If the process has involved either a solicitor or a family mediator, then these agreements will be noted in a Memorandum of Understanding. Usually nothing more formal is required as long as the agreements that have been made are upheld and kept to. If the arrangements are not working then changes can be negotiated. However, it is important to remember the importance of flexibility especially in arrangements regarding children, as children’s needs and requirements change particularly as they get older and they start to make their arrangements outside of their parents. Where arrangements have been made regarding finances and/or property then it is generally a good idea to both see a solicitor separately once agreements have been finalized in order for them to check the agreement and ensure that neither of you are able to make a future claim. This can be done by making the arrangements that you have both come to into a legally binding court order.
What happens when we cannot agree all issues in regard to assets and children?
When arrangements regarding property and/or finances or arrangements for any children cannot be agreed upon, then it may be that the courts will need to become involved and make the decisions in these instances. The court will usually require that you have met with a mediator and have at least considered mediation as an option in the first instance in most cases. If you do need to go to court then it may be that you require a solicitor to help you through this process or you are able to act on your own behalf. However, solicitors can prove very costly and often the legal fees can become more than the amount that is actually being argued about and the judge will still encourage both parties to come to an agreement on their own terms anyway. Costs can be kept lower if a solicitor is required by shopping around and comparing prices, ensuring that you are organised and preparing for conversations with them in order to not waste time, avoiding sending them letters and telephoning them unnecessarily and agreeing the tasks that you able to do yourself rather than relying upon the solicitor to do everything for you. If you do choose to represent yourself, it obviously prevents many of the legal expenses but it is quite a complicated procedure and can be even more complicated if your ex-partner has legal representation and you do not.
How do I get a divorce?
Obtaining a divorce does require quite a lot of complicated paperwork so you may require a solicitor in order to help you with this or you can attempt it yourself. Using a family solicitor is probably the easiest way but it is not always the cheapest option and can be difficult to afford if you are on a low income or need to save money. Certain people on very low incomes or those that have been in an abusive relationship and are divorcing for this reason may be able to obtain some legal aid to help with the costs involved of having a solicitor acting on your behalf. Some solicitors also have started to work in a slightly different way and may offer help in filling out and organising the paperwork involved for a fixed fee rather than working with an hourly charge. The person actually seeking the divorce in the first instance, are likely to incur slightly higher costs as there is more paperwork involved in this process than the person being divorced. There are some websites that offer help with divorce very cheaply. You are generally offered a ‘case manager’ rather than a solicitor and the amount that they charge is far lower than traditional costs associated with divorce. However, caution is urged with these practices as they are not regulated, often have no training and have no insurance. This means that if something goes wrong with your divorce or the advice that you are given is incorrect, then you have no comeback and there is nowhere in which to complain about their conduct.
What is the divorce process?
Where you are seeking a divorce or an end to a civil partnership, the process is the same. In the first instance the person asking for the divorce sends the divorce petition to the court and pays the required court fee. Once this is done, the court checks that all of the papers have been filled in correctly and assigns the case a number before sending the papers to the ex-partner. Once these have been received by the ex-partner, they then must answer the questions on the acknowledgement of service form before sending it back to the court. By filling in this form, it shows the court that you have both received the divorce petition and whether the other party are going to object to the divorce or the reasons cited for the divorce or not. Once the court has received this, they then make copies of it and send it back to the person who originally filed the divorce petition whereby they then complete the attached form asking for the case to go ahead and a court date for the Decree Nisi. Once the court has received these, the judge reads the file to ensure that everything has been filled out correctly and that nothing is missing before fixing a date for the Decree Nisi. Once this has been done, then letters confirming this date are sent to both of the parties involved. On the date that has been set by the court, the Decree Nisi is issued and a copy is then sent to both of the parties. After 6 weeks and 1 day of the Decree Nisi being issued, then the person who has originally asked for the divorce, fills in a form and sends it back to the court asking for the Decree Absolute. However, if they do not fill in the paperwork and apply for the Decree Absolute within 3 months, then the other party involved may apply for it instead. The original person must be informed of this application and has the opportunity to oppose it if they wish. Once this is done the court checks the file and paperwork once more and will issue the Decree Absolute meaning that the divorce is officially complete.
How to Handle Your Feelings
Divorce and separation can be very difficult to come to terms with, even when the relationship has been a very unhappy one. It can often feel like a bereavement in some sense and it can take longer than you expect to get over it and start rebuilding your life again. It can be hard to adjust to no longer being part of a couple and that the expectations that you once had have suddenly changed. For most people it can take 1-2 years to start to feel better after a divorce but there are no hard and fast rules and everybody is different so give yourself the time that you need to adjust. It may be that you require some additional help and support so don’t be afraid to speak with your friends, your GP, a counsellor and local support groups.
How do I help me children through divorce?
In the same way as it can take a long time to get used to no longer being together as a couple, it can also take a long time for children to adjust to the change. Through explaining to them that it is not their fault, reminding them how much both parents still love them and not arguing or putting the other parent down in front of them, can all help with this process. Try and keep any routines that the children have as near normal as possible and ensure that other people involved in your children’s life are aware of what is happening so that they too can keep a close eye on them and provide additional support where it is required.
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