Question and Answer with a Solicitor

Posted

Over the years we have published many blogs and it got me wondering what I would want to know before picking up the phone and making an appointment to see a family solicitor. Below you will find some questions and answers in bite size chunks which I hope you will find helpful.

Question: Do you offer a Fixed Fee Initial Consultation?

Answer: Yes, we do. It’s £75 plus VAT of £15 = £90. You will be given advice by a solicitor so that you can consider your options moving forward.

Question: How long do I have to be married before I can file for divorce?

Answer: You need to be married for at least one year.

Question: What grounds are there for divorce?

Answer: In England and Wales, there is only one ground for divorce known as the irretrievable breakdown of the marriage. It has to be proven by one of the following five facts:-

Adultery
Unreasonable behaviour
Two years separation and consent
Two years desertion
Five years separation

We will advise you and guide you on the facts most relevant to your case.

Question: How much does it cost to get divorce?

Answer: We charge a fixed-fee of £750 plus VAT of £150. In addition, there is a Court fee of £550 when the divorce papers are filed. This is for a straightforward divorce.

Question: How much does it cost to deal with the finances of the marriage and child arrangements?

Answer: To deal with other associated family law matters such as child arrangements and reaching an agreement on the distribution of assets, payments of spousal maintenance etc., you are charged at the solicitor’s hourly rate. We are a team of six family law solicitors with varying degrees of experience so you have a choice of solicitors whose hourly rates vary depending upon their level of experience.

Question: What are my options other than having to go down the divorce route?

Answer: If you and your spouse decide that you are not ready to divorce, we can try and agree the financial arrangements and the arrangements for the children on an informal basis. This will be an agreement drawn up by solicitors which sets out the agreed financial arrangements for the period of your separation. It can also set out the arrangements in relation to the children.

Both parties should obtain independent legal advice so that an agreement can be reached on how you would like the finances divided should you decide to proceed with a divorce at some time in the future. There should be some exchange of financial disclosure to ensure that any decision made is on an informed basis.

If, after entering into a Separation Agreement on an informal basis and on a subsequent divorce, the Court is not obliged to follow the terms of your agreement but is a factor which the Court will take into consideration.

Question: What is judicial separation?

Answer: This is a formal separation recognised by the Court and the process that you have to go through is very similar to the divorce process. However, a decree of judicial separation does not end the marriage, although the Court can make many of the same financial orders that it can upon divorce except that it cannot make any orders in relation to the sharing of pensions. The decree of judicial separation does remove your obligation to remain living together. Judicial separations are exceptionally rare and most often arise when there are strong cultural or religious reasons for not wishing to divorce.

Question: What about the kids?

Answer: As a parent, this is (and quite rightly so) your first consideration. Often, we are able to assist our clients with agreeing the arrangements for the children while advising on the divorce and financial arrangements too. We always prefer and endeavour for the parties to avoid costly and stressful Court proceedings if at all possible, we encourage our clients to put to one side their ill-feeling and avoid animosity toward the other party. This is not always possible and therefore if Court proceedings do become necessary, you will be well prepared, guided and advised from the outset to the conclusion of your matter.

Question: What can I do if my ex-partner will not allow me to move to another party of the country or abroad with the children?

Answer: If your ex-partner has parental responsibility, you should not attempt to remove the child from the jurisdiction of England and Wales or to another part of the world as you could be committing a criminal offence. The consent of the non-resident parent is needed before such drastic steps are taken. It is a complex area of law and both parties should seek independent legal advice. There should be proper planning and a comprehensive presentation of those plans are key to your success in any such application. The Court has power to decide whether or not a child should be allowed to move away with one of his or her parents.

Question: What level of child maintenance should my ex-partner be paying me?

Answer: The amount is calculated by reference to the non-resident parent’s gross income and varies upon the number of children and whether the non-resident parent has other children living with them (i.e. his new partner’s children). The child maintenance is payable to the parent with whom the children live. The calculation takes into account the number of nights that the children stay with the non-resident parent and if you visit the Child Maintenance Options website, you can put in the relevant figures and a calculation is very easily produced. The Child Maintenance Service deals with those types of queries and the family Court generally only becomes involved if the non-resident parent’s gross income is over £156,000 and a separation application is made.

Question: Will I get to keep the house once we divorce?

Answer: This really is the $64 million question and will largely depend on the financial needs, responsibilities and resources of you and your ex-partner. Often, the former family home is one of the main assets of the marriage and sometimes there is simply not enough equity in the property to re-house both parties.

Understandably, the first consideration for the Court is the welfare of any children of the marriage and often (and again largely depending on the specifics of any particular case), the primary carer of the children may argue to retain the property until the youngest child finishes fulltime education at which point the house is sold and the net proceeds of sale are split between the parties. It really does depend on whether the Court considers you are “over-housed” and if there are sufficient assets and income elsewhere, then it may be possible to retain the family house. However, the answer to this question is very much fact specific.

Question: How will my business be affected by the divorce?

Answer: A business is not automatically protected on divorce and will be treated as a matrimonial asset. One of the first things we need to do is ascertain the value of the business before we are able to deal with it in the context of dividing the matrimonial assets. Whilst the business may be a capital asset it will probably be an income source and sometimes it doesn’t make commercial sense to stop that income stream as that doesn’t help either party. The Courts do prefer to leave the business with the owner with the other party being compensated with some other capital assets of the marriage and/or spousal maintenance.

The aim of the Court is to distribute the resources of the marriage fairly, taking into consideration all the circumstances of your case. Again, this is where we can advise you on your best options.

Question: What is Mediation?

Answer: When we meet with clients, one of the first things that we do is explore whether or not we think that Mediation will be suitable for their case and if so then we will make a referral. However, for Mediation to work, both parties must be willing to attend and do so with an open mind and with a view to settlement. Mediation is a good way of resolving disputes when you are separating and it does help to avoid costly and lengthy Court proceedings. Mediation can be in relation to the divorce, financial settlement and/or arrangements for your children.

The Mediator must act impartially. They are not there to give legal advice to either party. They do not have the power to impose a decision on how to distribute the assets of the marriage as this requires both parties’ consent. Mediation meetings are confidential and it’s a good forum in which to discuss and to try and resolve issues that arise both honestly and openly.

When parties go off to Mediation, we are often here in the background to advise and give guidance and this gives you some confidence in what agreement you should be seeking. However, as always, for us to be able to advise you on the fair distribution of matrimonial assets and/or payment of maintenance, we need to understand the financial position of both of you and this is when you exchange financial information. Otherwise, it is impossible to advise whether or not you are getting a fair deal when we only know one half of the finances.

Question: If we reach an agreement in Mediation does that make the agreement legally binding and enforceable?

Answer: No, it does not. Any agreement reached in Mediation must be reflected into an order of the Court and this is where we can assist with the drafting up and filing with the Court, the relevant documents to ensure that it is a full and final settlement.

At Chapman Pieri Solicitors, we practice exclusively in all areas of family law so please feel free to give one of our solicitors a ring on 0208 882 9850 to arrange a fixed fee initial consultation.