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Christmas parenting plans

Children of Divorce – Getting your Christmas Parenting Plans at the Ready

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For children of divorce, spending Christmas with parents in conflict is like you winning an all-paid-for holiday to an amazing destination to stay in one of the most fabulous 5 star hotels…that is under going extensive renovations.

Everything is great about the whole idea, except that you will certainly not find peace and tranquility and that defeats the whole purpose.

Forget about lying by the pool for hours on end, with your cocktails, books and magazines; it’s shut.

There will be early morning drilling sounds, trucks all over the place and limited use of the great facilities that the place usually has to offer.  Before you know it, you want to spend the rest of your holiday, outside the hotel, only returning to go to bed.

That’s what it’s like for children whose parents are going through an acrimonious divorce and/or separation during this time of year.

They will get the most fabulous presents that you can afford but their joy, excitement and delight will be short lived and blanketed in worry, uncertainty and uneasiness.  And if they are anything like some clients I have worked with, some gifts will act as reminders of the very difficult Christmases they lived through in their childhood for years to come.

If this is your first Christmas as divorcing or separating parents, there’s one thing your children could greatly do with and benefit from.

Peace.

And this you can gift them by:

  • letting them be. Let them wake up and sleep through these holidays stress free.  Yes, it’s not easy for you as the divorcing or separating parents to do, but it’s not impossible either. You can do it for them, if you really want to. Allow them to enjoy their holidays without conflict, anxieties and worries.
  • creating a good structured plan that you can share with them so that they know where they will be, with whom and for how long. One father in mediation recently agreed for his ex-wife to have the children from 23th – 27th December.  He explained his decision by saying that it really didn’t matter which day you spend Christmas with your children; all they need is to be with you at some point and on that day, at that time, you can celebrate Christmas, as you choose and wish, in peace.  They don’t care if you do it on 25th or on 30th. He’s absolutely correct.  They don’t care.
  • sticking to the plan and should you need to change the plans for good, legitimate and genuine reasons, not just because you’re angry and riddled with vengeful thoughts and emotions, then tell them in advance and acknowledge any feelings of disappointment they may have or show. Be the adult in the room that they need you to be. Because after all, they only have you two as parents.  Which one of you will ensure that their holidays go as smoothly as possible?

Clients I have worked with, have often asked me what my co-parenting plan over the Christmas period looks like.

We chose to make it really simple for the children and ourselves. We alternate every year from 23rd to the new year.  This means that each year either one of us has the children for a good block of time which allows us to travel abroad if we choose to.

During the time that they are away, the children get to speak with the “absent” parent almost everyday, over Skype, phone, whatsapp or Facetime.  We share stories of what we have done and our plans for the next few days.

This means that our children know exactly what they are doing, with whom, where and for how long. This structure has remained in place since my eldest daughter was 6 and she is now 25.  It just works.

Of course it’s not easy for the parent without the children.

You will miss them but all you have to do is plan out your time.  If you feel that you will be lonely, sad and upset without them. Then you will really need to deal with that without sharing it with the children.  They don’t need to be worrying about you.  Let them be. You do you.

If you’re stuck with how to manage these holidays for you and your little ones, then do contact me and let’s take it from there.  It really needn’t be hell.

ABOUT SOILA

Soila is a Parenting Therapist, accredited Triple P practitioner, Certified Trauma Specialist and trained Family Mediator.  She works in private practice mainly, but not exclusively, with families going through divorce and separation.

Soila is the founder of The Davis Centre and The Divorce Magazine.

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money divorce

MONEY, DIVORCE AND REALITY

Published on
Nigel C Winter Partner in the Family Department of Rawlison Butler Solicitors
Nigel C Winter
Partner in the Family Department of Rawlison Butler Solicitors

In the third and final article in the series, rb’s Family team consider the cost of divorce and critically how to avoid that expense.  You can find article one and article two here

Every divorce lawyer knows that ultimately every client of theirs has it within their power to dramatically limit the financial impact and cost of a divorce. If you find yourself in the unfortunate position of going through a divorce – here’s how to do it.

Quite simply, don’t fall foul of the understandable temptation to be less than candid about what you are worth. The lawyers will get to the bottom of it and they will charge for the pleasure of doing so.

In the ‘real world’, beyond TV Court room dramas, the question in dispute is not always about how the assets should be split. It is frequently about what constitutes those assets.

For the vast majority of people, they can forget arguments about who made the greater contribution to the marriage or having inherited wealth. The Court will expect it all to ‘go in the pot’.

In the vast majority of cases, if both parties fully and frankly disclose their respective finances the costs of their divorces would plummet.

How so?

Whilst the Judge has a great deal of discretion, the reality is that there is a ‘starting point of a yardstick of equality’ in most divorce cases. The Courts will only depart from that said ‘yardstick’ if there is good reason to do so i.e. there are children preventing one party from working full-time.

You do not pay a lawyer by the hour simply to tell you that “it will  be 50/50”. It is ensuring that there has been full and frank disclosure that costs. Only the parties can avoid that cost by being honest at the outset. It is simply a question of whether you want to get to where you need to be for say £1,000.00 or for £10,000.00 and possibly more. Only the parties to divorce themselves can decide.

What to do?

The Courts have devised a very searching document that deals with disclosure known as ‘Form E’.

money divorce form eHowever as both parties can fill this out themselves (albeit with the help of their lawyers) they are presented with the prospect of completing this process for minimal cost. This then has to be compiled along with documentation in support which is at the respective client’s disposal and not their lawyers.

If the above is not searching enough, then each party to a divorce has the right to raise questionnaires in respect of the Form E and the disclosed documentation.

Typically either party can be compelled to explain every single transfer in their bank accounts of £500.00 or more. They are then required to confirm what this expenditure went towards and to provide documentary evidence in support.

The same applies for assets that have been disposed of and the valuation of homes, investments, cars and personal possessions etc. By the time this process is concluded, the Courts will be able to work out to the nearest £5.00 what the parties are worth.

How important is this rule about full and frank disclosure?

Frankly – vital.

Before any settlement is reached, you sign to state that you have filled out your Form E and the contents are true and wholly accurate. To knowingly make a false statement is a contempt of Court which ultimately carries the sanction of imprisonment.

Some people are prepared to run such a risk – but your lawyer would advise against it. Less dramatically, people who discovered that their former spouse has lied about their wealth will be able to re-open those settlements at any point in the future.

Thus, if you are ‘full and frank’ in your disclosure at the outset you could save yourself a considerable amount of legal cost.

If it is as simple as that why don’t more people do it?

Good question.

Perhaps they don’t read articles like this? Or because the reality is that divorce itself is an inherently sensitive and unpleasant process.

Human emotion is not meant to be rational and where a formerly loving relationship goes from being influenced by the tide of emotion to being dictated by ‘black letter law’ (literally Acts of Parliament), it may be unrealistic for people to suddenly be so regimented in their approach.

Furthermore the old-fashioned approach to divorce was framed in the language of antagonism.

Remember the Dustin Hoffman movie Kramer –v- Kramer (probably not – it was 1979), but right at the outset it was him –v- her. Or was it her –v- him? It doesn’t matter, it was the language of conflict.

Happily since then, if the Kramers were going through a divorce today they might choose Mediation or Collaborative Law and ‘work together’.

Is it really possible to ‘work together’ when you are in reality ‘against each other’? Yes – if you adopt the right process. Just remove all the language of conflict and bear in mind that in many cases it is possible to emerge as friends.

It is also vitally important where there are children and you will always be the parents of those children. Mediation and Collaborative Law are increasingly replacing the Court based process that Meryl Streep dragged Dustin Hoffmann through, in the iconic movie. It simply doesn’t have to be like that anymore.

ABOUT NIGEL

Nigel C Winter is a partner in the Family Department of Rawlison Butler Solicitors, based in the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.

He has been practicing family law for over 2 decades, is a Collaborative lawyer and a regular contributor to a wide variety of publications on divorce and family law.

 

Did you know? There are online advice videos at: – https://www.youtube.com/watch?v=WKsjD1sqe-U

 

 

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Helping your Child Deal with Divorce

Helping your Child Deal with Divorce

Published on
Nigel C Winter Partner in the Family Department of Rawlison Butler Solicitors
Nigel C Winter
Partner in the Family Department of Rawlison Butler Solicitors

In the second of the series RB’s Family Department’ Nigel Winter looks at the effects of divorce/separation upon children.  You can find the first part here.

There are many terrible dilemmas that face anyone contemplating divorce or separation.

One of the most significant is the impact upon children.

One would simply not be human if you fail to consider their wishes and what was in your children’s’ best interests.

Furthermore the impact of divorce according to “research” (whether you accept it or not) is cause for concern. The incidences of failed relationships, under achievement etc. are startling.

Notwithstanding all of the above some 82% of children and adolescents polled in a recent survey have stated that they would prefer their parents to divorce rather than stay in a marriage that was unhappy.

Although parents understandably stay together “for the sake of the children” those said “children” can be alarmingly wise and they will realise sooner or later that their parents’ relationship is on poor terms.

This article is not therefore about advising people what they should do. It is simply about giving them some of the surprising facts about how our children feel and then leaving parents to go away and reflect on this.

However it appears that the case of staying together “for the children”, whilst founded on the best of intentions doesn’t necessarily serve the children’s’ interest.

Therefore, if a couple are to divorce there may be some “golden rules” in conducting that divorce with your children in mind.

It is also clear that when divorce is carried out properly children can manage very well. However there are a number of “pitfalls” that are to be avoided. Some of these take a great deal of patience but are very much in the children’s’ interest.

Step 1            –             Be respectful to the other parent.

It is a fact that children love both their parents but can’t understand why they don’t necessarily love each other anymore.

Thus, if you bring your ex’s faults to their attention, however careful the language you use, this will be unpleasant for them. Children often feel the need to defend the parent being berated and therefore feel uncomfortable “taking sides”.

Difficult as it may be, put yourself in your children’s’ position and recall how in your childhood you loved both your parents.

Step 2            –            Avoid misplaced resentment.

Research has shown that in particularly nasty divorces a resentment that their parties have towards their ex can be transferred to their children.

This is particularly so where the children have a similar personality trait to the ex i.e. one party is punctual or particularly tidy, the other less so. This is not your ex you see manifested in your child but your child: it’s part of their makeup.

Step 3            –            Avoid using children as a “pawn”.

The instinct to “wreak havoc” once a relationship is over may be understandable.  Children present every opportunity to be a vehicle for doing so.

Disagreements over contact, joint holidays, Helping your Child Deal with Divorcemeeting the new partner, and even maintenance can all be conveyed through a child.

They should not be! These are matters that should be communicated directly or through lawyers.

Furthermore ’children being children’, they can in some circumstances know how to “play one off against the other”. Some children going through divorce get two birthday parties which both parents trying to over-impress with more expensive presents etc.

At a very early age the children will move from exploiting the situation to realising how harmful it is. Parents should resort to a parenting plan and mediation over these issues.

Step 4            –            Treat special events with the respect they deserve.

Children are often desperate for their parents to see them at the school sports day, performing at plays etc. They will often want both parents to attend for these milestones.

If you still feel “raw” about a separation, remember that a child may recall that day for the rest of their lives and long after you have moved on. You may have to “fake it” but in the fullness of time they will be grateful to you for that.

Step 5                        Work together and be seen to work together.

You will always be the parents of your children. Big decisions like education and medical treatment will have to be taken together.

Furthermore, in an all too brief period of time there will be graduations, wedding ceremonies and ultimately christenings. If you and your ex can get together for these events without your children being ‘on edge’ then you will have served their best interests.

Remember you are still a family – you just happen to be one in which the parents are no longer together.

You will have to function as a family on that basis and this can be very rewarding for all concerned. Indeed Relate even assist families on the post- divorce situation. In doing so they listen to the parents and also to the children.   This will help everyone “move on” without doing so through a Court of law!

It is unlikely that a family going through divorce are where they want to be. However you can either make the best of the situation or the worse.

ABOUT NIGEL

Nigel C Winter is a partner in the Family Department of Rawlison Butler Solicitors, based in the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.

He has been practicing family law for over 2 decades, is a Collaborative lawyer and a regular contributor to a wide variety of publications on divorce and family law.

Did you know? There are on-line advice videos at:-

https://www.youtube.com/watch?v=WKsjD1sqe-U

 

 

 

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How to get full custody of child

Children and Divorce – Is it Possible to get Full Custody of Child?

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Vanessa Fox Partner and Head of Family Law hlw Keeble Hawson
Vanessa Fox
Partner and Head of
Family Law
hlw Keeble Hawson

Family lawyers in England and Wales don’t like the word ‘custody’, which became obsolete in 1990 with the Children Act.

Before 1990, the key terms used were ‘custody’ (who has the main rights and duties for the child?), ‘care’ and ‘control’ (where does the child live?) and ‘access’ (when should the other parent see the child?).

Despite the continuing influence of high profile US cases, such as the Brangelina split, where the partners wrangle over full custody, from 1990 onwards in England and Wales family lawyers had to re-educate our clients to say residence order and contact order.

In the last couple of years, we have had to re-educate them again, to say ‘Child Arrangement Order’, when providing Live With and Spend Time With orders.

In fact, most people still, 26 years later, talk about custody and access, and also use the term ‘main carer’, which I personally think is divisive and unhelpful.

For lawyers, the nearest to ‘full custody’ is a Live With order – that is an order where the child lives full time with that parent or person (as it is not always a parent who cares for a child).

However, courts are unwilling in the modern age to divide children’s time up in the old way of custody and access.

The court primarily wants parents to sort the issue of where the children live between them without any court orders. Thus, court orders are only made in difficult cases where the parents cannot agree about where the child should live and with whom and when the child should see the other parent.

In most of the cases I see, parents are able to resolve this issue by agreement – either directly, through lawyers, in mediation or at the beginning of a court process.

One size definitely does not fit all and parents have all sorts of different arrangements, from one week on to one week off to every other weekend, one night per week, or less. These schedules depend entirely on the ability of the parents to negotiate with each other and the free time from work that each of them has.

In some instances, often referred to as implacable hostility cases, the parents’ relationship is so poor that there is often no contact between the absent parent and the children at all. In those cases, the parent with care (usually the mother) will often end up by default with ‘full custody’.

Custody also used to mean parental responsibility.

This is nearly always shared between the parents and covers rights to information about education, health, where the child lives in the UK or the world.

It doesn’t confer a right to ‘call the shots’ day-to-day. Fathers of children in unmarried families have parental responsibility where they are named on the birth certificate after a certain date.

About Vanessa Fox

hlw Keeble Hawson partner, Vanessa Fox, marks 25 years as head of the firm’s family law department in 2016.

Collaboratively trained and a qualified mediator, she has modernised South Yorkshire Resolution since becoming chair in 2013 and is also a member of the Law Society’s Family Law Panel and the Children Panel.

She can be contacted at on 0114 290 6232 or on vanessafox@hlwkeeblehawson.co.uk.

 

 

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‘Brangelina’ Split and How to Guarantee Privacy During your Divorce Process

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Peter Jones Founder Jones Myers
Peter Jones
Founder
Jones Myers

The media frenzy continues a week after Angelina Jolie filed for divorce from Brad Pitt with every aspect of their lives – and the lives of their children – continuing to be played out in front of millions of people worldwide.

However, irrespective of whether you are Hollywood’s most “golden” couple, divorcing through the courts comes with no guarantee of privacy – as some of the hearings are open to the public and journalists can attend and report details of the proceedings.

They may do so if there is a salacious element, perceived wealth, or accusations of attempts to hide assets – which can be embarrassing and distressing for the couple, as well as their children, parents or business partners.

Our specialist family lawyers advise of three less public routes, outlined below, to take when marriages break down.

Arbitration is a quicker, less emotionally and financially draining alternative to court battles. The press is barred from hearings, which are arranged at clients’ convenience, at comfortable venues, where a family arbitrator rules on who should have what.

Just like a judge, the arbitrator bases his or her decision on relevant facts and evidence – taking into account the views of both parties. The award is final and binding on both parties. Arbitrators are not only qualified in their field – they are also experienced family lawyers who are either former judges or family law barristers or solicitors.

Mediation is also an effective and private way of resolving disputes without the need to go to court. It involves an independent third party – a mediator – who helps both sides come to an agreement.

It is a highly effective method which can result in a swift resolution and save on legal expenses.

Couples often use mediation as a way to explore and discuss issues between them, with the assistance and guidance of an impartial mediator. Because many issues are resolved during mediation, they often find that they save a great deal in legal costs by opting for mediation first.

Collaboration sees couples each appoint their own collaboratively trained lawyer. They meet to work things out and are backed up by support and legal advice. All sign a contract committing them to trying to resolve matters by agreement, without going to court.

The lawyers will agree only to represent the parties within the collaborative process and not in court. This ensures that everyone at the table, not just the divorcing spouses but also their legal representatives are committed to finding an out-of-court solution.

Collaboration places an emphasis on a respectful and dignified resolution, putting any children at the heart of the process, and keeping the details private and confidential.

Divorcing couples who value their privacy are advised to consider these options which are also more cost effective, less traumatic and less prolonged than litigating.

About Peter Jones 

Peter Jones is one of the country’s leading divorce and family lawyers.

A qualified arbitrator and mediator, Peter set up Jones Myers as the first niche family law firm in the north of England in 1992 and has acted for a string of high-profile clients.

Renowned for his sympathetic approach, he is a former national chairman of Resolution, a former Deputy District Judge – and instigated the D5 Group of law firms that promotes excellence in family law.

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celebrity spilts

Celebrity Splits or Anonymous Divorces? – How Best to Help Children Through it

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Vanessa Fox Partner and Head of Family Law hlw Keeble Hawson
Vanessa Fox
Partner and Head of
Family Law
hlw Keeble Hawson

It is surprising that couples as wealthy as Amber Heard and Johnny Depp and now Brad Pitt and Angelina Jolie wash their linen so publicly, when financially they are in a position not to do so.

Their motives may perhaps lie with a need to respond to the media circus that surrounds them – seeking to gain the public’s sympathy for their individual position – something the rest of us mere mortals can be grateful to avoid.

With that in mind, media speculation over a potential court battle over Brad Pitt and Angelina Jolie’s six children – aged between 8 and 15 and, on any view, the innocent bystanders – is extremely worrying.

It is reported that Ms Jolie has instructed a lawyer well known for litigious work. However, it is to be hoped that the celebrity couple’s legal teams will advise them that there are other routes to achieving agreement that would prioritise their children’s needs.

For their children’s sake, any parents during separation, should act responsibly and avoid a bloodbath of litigation – which comes with the danger of distressing any young family members immensely. With celebrity couples, any litigation appears to be conducted in the public eye, with media comment at every stage.

Where there are children to consider, especially across a wide age range, separating parents should think carefully as to the legal path they take upon separation, as this will affect the children greatly. The legal recommendation to separating parents should be that a court appearance about children issues should be the last resort.

Although there are cases where a court application is the only option, parents should be advised to look at other choices, including mediation, counselling and collaborative family law practice. If parents can sit in a room together (whether with mediators or trained family lawyers) and listen to each other, they often realise that more unites than divides them where the children are concerned.

On a practical level, it is vital that children are helped to get through their parents’ separation and divorce as sensitively as possible and with minimum disruption. To achieve this, I recommend a checklist of ten tips:

  • It is best if parents can sit down together to tell their children about a separation or divorce. If the conversations have to be separate, it’s important to agree what you will each say beforehand so that children have a consistent message. Keep explanations simple and try not to blame each other.
  • Put your children’s welfare, not your own, at the forefront of your mind and avoid unnecessary squabbles over trivial issues with the other parent where possible when the children are present. Try to look at each situation through your children’s eyes.
  • Try to be as fair and as flexible with the other parent as possible about children issues, whilst not messing each other around with last minute changes of plan. A routine is helpful for children, but it needn’t become a straitjacket.
  • Agree some parenting ground rules with your ex, but also try to fit in with some differences in approach, without compromising on issues that really matter to you.
  • Don’t get into a ‘blame game’ with the other parent and give each other as much notice as possible with any problems that will inevitably arise from time to time with contact issues. This will help the children understand that they need to see both parents.
  • Reassure your children that you love them and that they are not to blame. Always remember that children are entitled to continue to love both their parents.
  • Explain in simple terms how their lives will change, particularly major decisions such as where they will live and how often they will see each parent. Be prepared to consider changes to the routine you have agreed with your ex if your children want to change the arrangements – and be particularly flexible with teenagers.
  • Listen to your children and make time for them, giving them your full attention – and turn off mobile phones when you spend time with them. Don’t force your child to talk to you, but reassure him or her that you are there to listen when they are ready.
  • Keep your own personal issues and feelings about the separation out of any discussions with your children and focus on how they are each feeling.
  • Try to counter the negative impact of separation or divorce with positive statements about the children such as praising them for achievements at school or helping around the home.

About Vanessa

hlw Keeble Hawson partner, Vanessa Fox, marks 25 years as head of the firm’s family law department in 2016.

Collaboratively trained and a qualified mediator, she has modernised South Yorkshire Resolution since becoming chair in 2013 and is also a member of the Law Society’s Family Law Panel and the Children Panel.

She can be contacted at on 0114 290 6232 or on vanessafox@hlwkeeblehawson.co.uk.

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why you need a financial order
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They Think It’s All Over …  Actually, No It Isn’t or Why you Need a Financial Order on your Divorce

Published on
Karen Wallace
Karen Wallace
Head of Family Department
Stafford Young Jones

The Minister says to the Groom/Bride:

 N, will you take N to be your wife/husband?

Will you love her/him, comfort her/him, honour and protect her/him and, forsaking all others, be faithful to her/him as long as you both shall live? (The Marriage Service  © The Archbishop’s Council 2016)

Many of us will be familiar with these words from the traditional church wedding service.

When we say “I will” in response, and then go on to make the traditional vows about having and holding, for better, for worse, for richer, for poorer and so on, most people don’t realise that they are also saying, and under the Matrimonial Causes Act, if we get divorced we are obligated to continue to financially support each other and can make claims against each other for capital, income and pensions at any time until the court says those claims are dismissed.

It’s not as romantic as, ‘til death us do part, but I wonder how much grief would be saved if people understood that they are both taking on these responsibilities when those vows are made?

Those claims, for capital, income and pensions, relate to the assets that have been built up during the marriage as a result of contributions both people made to the relationship.

The courts don’t discriminate between types of contribution so a wife who has stayed home to raise the children has contributed as much as a husband who went out to work and earned the money to pay the mortgage.  But what I am concerned with here are the words “until the court says those claims are dismissed.”

If you are divorcing right now you may find that there are complicated issues to resolve about finances – who is to get what out of the house, what happens about pensions, the division of a business.

If you have a lawyer advising you and you reach an agreement with your ex, it will be strongly recommended that a Financial Remedy Order (“FRO”) is drawn up.  In these circumstances it will be applied for by consent, so these orders are often called “consent orders”.

If you go to court and a judge decides it all for you, you will get a FRO automatically as part of the decision process.

All FROs, made by consent or otherwise, are made by judges, so that they are binding and enforceable, meaning that if either of you try to go back on the deal, the other can go back to court and make you do what you are supposed to.  They always include “dismissal clauses”, which explicitly say that neither of you can claim anything else from the other in the future.

why you need a financial order
What if you don’t really have any assets to divide

But what if you reach agreement with your ex by some other route, such as mediation?  Or what if you don’t really have any assets to divide, or you sort it all out between you and there is no hassle about anything?  Surely the decree absolute will take care of it?  You don’t need to go to the bother of getting a FRO then, do you?

Well yes, actually, you do.  Getting your decree absolute only confirms that you are divorced.  Those claims for capital, income and pensions don’t go away until a judge specifically says they do.  If you marry again then you can’t make claims – but if your ex doesn’t remarry they can still claim from you at any time in the future – unless and until a judge has said they can’t.

You might think that you don’t have very much and you will probably carry on not having very much, and neither will your ex, but what happens if they fall ill or have an accident and can’t work anymore, so have even less than they do now, or you win the Lottery?  Those sorts of circumstances throw a whole new light on it, and suddenly, even years later, you could find yourself facing a claim.

That’s exactly what happened in the case of Wyatt v Vince [2016] EWHC 1368 (FAM).

The case made the headlines a year or two ago when Mr Vince tried to say that Ms Wyatt wasn’t entitled to make a claim because of a 19 year delay, but the Supreme Court said that she could.

Her claim has recently been resolved by agreement and she was awarded £300,000 plus some money towards the costs of the Supreme Court hearings.  The judge approving their agreement said he was satisfied that it was reasonable for Ms Wyatt to receive a modest award following the breakdown of the marriage.

I expect you are wondering why she waited so long to make her claim.  Well, they married in 1981 and had one child.  They separated in 1984 and divorced in 1992.

During the marriage they lived a New Age traveller lifestyle; after they separated Mr Vince continued living as a traveller for several years; Ms Wyatt also lived as a traveller with their child, and in homeless shelters and eventually in a council property.  A classic case of a couple with not very much at all who probably saw no reason to go to the trouble and expense of getting a FRO.

What changed was that years later Mr Vince became a highly successful green energy tycoon worth £57m, while Ms Wyatt continued to live in her council property, suffering with various health problems.

The amount they eventually agreed she should receive was only about 0.05% of his overall wealth, and her claim was an uphill struggle; but nevertheless she still got something, over 19 years after they divorced, when it could never be said that she had made even the slightest contribution to the assets Mr Vince had built up.

And it was all because they never asked a judge to dismiss their claims against each other when they got divorced.  A great opportunity for Ms Wyatt, not so much for Mr Vince who, as you might imagine, is a bit cross about it all.

So that is why lawyers recommend that you have a FRO dismissing all claims, so that you both have the certainty for the future that neither of you can bring any claims against the other in later years.

A FRO means that the agreement you have reached is binding: neither of you can go back on any deal you may have made in mediation; and neither of you can go back on a promise between the two of you to leave each other’s finances alone.

FROs are bespoke technical documents that are tailored to your individual circumstances, and usually you will need a lawyer to write it up for you.  But if your circumstances change later in life and you hit a jackpot, you may find that it was a very worthwhile investment – and it really will all be over.

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divorce lawyer
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How To Spot A Divorce Lawyer Who Is Getting More Out Of Your Divorce Than You Are

Published on
Karen Wallace
Karen Wallace
Head of Family Department
Stafford Young Jones

“For the [guild of lawyers], their work is very much what it is for all lawyers, which is to say, doing things slowly for a lot of money“ – Terry Pratchett

Let’s face it, lawyers have a bad reputation.  They are pedantic, argumentative, use ten words when two will do, and they charge a fortune – and that’s the good ones!

The trouble is that lawyers know that the devil is in the detail – cases are won and lost on the interpretation of words, and a big feature of the law is how it is interpreted.

They know that if they get this wrong, or miss a crucial point, they can be sued, and rightly so.  One reason lawyers charge the fees they do is because of their massive insurance premiums.

I’ll let you into a secret – the reason lawyers are so cautious is because they are terrified of being sued.  So while they want to give you a good service, they also go to great lengths to avoid a law suit.  Even the wording I am using in this article has to be carefully considered because of a reference to a real case.

Family lawyers are no different.  In some respects they are worse because the work they do is personal and packed full of emotion – people who are divorcing are fragile and emotional – and the outcome they get for their clients will impact the rest of their lives.  So there is a lot at stake.  Emotional fragile people who don’t get what they want are likely to sue, or at least complain.

Human nature being what it is, just as probate lawyers are happy when there’s a cold winter, certain family lawyers can be happy when they meet one half of a warring couple because they see an opportunity to make money.

Family law is undergoing massive changes.

The focus on mediation, trying to get families to sort out their issues without going to court, means that family law is not as lucrative as it used to be, and yet, lawyers still need to perform and meet their billing targets.

As a member of Resolution I am firmly committed to doing all I can to take the heat out of the situation so that even if a court hearing is needed the process is still polite, respectful and as amicable as possible.  But sadly there are some lawyers who see a warring couple and take the opportunity to up the ante, inflame a bad situation to make it worse –  so that they can make more money.

I came across a very blatant example of this recently.  I was consulted by a wife who had been separated from her husband for a number of years.  He had been working abroad and so saw his children only sporadically – but they had been able to make those arrangements themselves with no problem.

He had recently lost his job so had returned to the UK and now wanted to establish a more stable, fortnightly contact regime with two children who are pre- and mid-teens.  I was contacted by his lawyer about specific contact arrangements, intent on convincing me that my client was refusing contact.  This was far from the case.  My client was willing to encourage whatever contact the children wanted, but she knew that, given their own activities, social lives and opinions, they were only going to want to see him about once a month.

divorce lawyer
Is your divorce lawyer not listening?

It would have been the easiest thing in the world for me to have responded in kind, but I resisted the temptation.

I told the lawyer that this was not a discussion for us to be having.  This was not a newly separated couple who were so highly conflicted that they needed their lawyers to micromanage their contact arrangements.  These were not children who were so young that they couldn’t decide for or speak for themselves.

I made it clear that I was not going to get involved in protracted correspondence when this couple were perfectly capable of speaking to each other and to the children to sort it all out for themselves.

In relation to financial issues, this same couple have already done their basic deal.  She has capital, he has pensions: no further intervention is needed, and they are both happy with that arrangement.  Yet this lawyer was still suggesting full disclosure when all they need is a simple order that says neither person can make a claim against the other in the future.

Because I too am cautious, I have asked my client to sign a disclaimer confirming that she understands that as there has been no disclosure I have not been able to advise her on whether the agreement they have reached is fair, and that she understands that if she later finds out he had assets she didn’t know about, she can’t make a claim against them.

She is happy to sign this because she knows he doesn’t have anything else and even if he did, she doesn’t want it.  But again it would have been very easy to agree that full disclosure was required, just to check, and let’s take a few months over it and write some expensive snotty letters in the meantime.

This strikes me as a classic case of a lawyer trying to get more out of their client’s divorce than the client is getting.

How can you tell if that is happening to you?  Well, here are some things to look for:

  • Are you being asked to produce all of your bank statements and documents even though you know all about your ex’s finances and have reached a deal you are happy with?
  • Is your lawyer insisting on fighting small points you don’t really care about?
  • Is your lawyer telling you not to speak to your ex even though both of you are quite comfortable doing so?
  • Are you being encouraged to start court proceedings when you still want to try to negotiate?
  • Is your lawyer not listening to you?

As with anything in life, listen to your gut.  If something doesn’t feel right, it probably isn’t.  If you are being advised to do something you are uncomfortable with, don’t do it.

A fundamental rule of the solicitor/client relationship is that the lawyer advises, you instruct.  In other words the lawyer is there to do what you want them to do, having first explained the law and the legal repercussions of whatever options may be available to you so that you can make an informed decision.

Divorce is a stressful time.  Sometimes you need someone to be a buffer between you and your ex because you simply can’t handle them anymore.

Lawyers are great for that, but it is important to remember that it is your agenda, not the lawyer’s, and if you are finding that your agenda has fallen by the wayside, don’t be afraid to say, ‘thank you but goodbye’, and find someone else who will put your needs, and your pocket, first.

About Karen

Karen Wallace qualified as a solicitor in 1993 and has practiced Family Law throughout her career, initially as part of a general litigation practice and then specialising from 2004. 

As a divorced parent she has considerable insight into the issues faced by divorcing couples.  Karen uses this insight to help a wide range of families successfully through the legal maze of divorce with as little expense and trauma as possible – www.syjlaw.co.uk

 wallacek@syjlaw.co.uk

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MIAMs are Not the Way to Encourage Divorcing Couples to Mediate
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MIAMs are Not the Way to Encourage Divorcing Couples to Mediate

Published on
Katie McCann
Katie McCann
Head of Family Law and in-house counsel at Kuits Solicitors

The Ministry of Justice recently published the Legal Aid Statistics for October to December 2015, which revealed that the number of Mediation Information and Assessment Meetings (MIAMs) have continued to decline and were down by 16% in the last quarter.

MIAMs were introduced in April 2011 and became compulsory for divorcing couples to attend in April 2014 before they’re granted permission for their matter to be progressed to court.

The aim of the meetings is to assess whether mediation is an appropriate way to resolve any issues and, ultimately, to try to avoid court proceedings.

The Advantages of Mediation

While mediation is not suitable for every case, it certainly has its benefits. Going to court may provide closure, but it puts decision-making in the hands of a judge. Mediation, on the other hand, provides the divorcing couple with far more control and allows them to work together to reach practical agreements.

Cooperating to reach conclusions leads to a far less hostile environment, where communication is encouraged and stress levels can be reduced.

Mediation also often allows for a far speedier process, which is significantly cheaper than litigation, and it can be especially useful when reaching decisions in relation to any children, where flexibility and compromise is vital.

Why aren’t MIAMs Leading to More Mediation?

Despite the above advantages, the introduction of compulsory MIAMs have not resulted in the desired increase in the use of mediation.

There are several reasons for this.

The first, quite correctly, is the existence of several exemptions that automatically permit non-attendance at a MIAM, based on the fact that mediation would be unsuitable for the couple in question.

MIAMs are Not the Way to Encourage Divorcing Couples to MediateLogical exceptions include situations where there has been an allegation of domestic violence in the last 12 months, where the whereabouts of one ex-spouse is unknown, or where any delay caused by attending a MIAM would cause significant harm to a child, a significant risk of a miscarriage of justice, or unreasonable hardship.

These exemptions, together with several others, are perfectly understandable and forcing such couples to attend mediation would be, at best, pointless and, at worst, unethical.

However on the other side, a MIAM form can be ‘signed-off’ if a session could not go ahead due to the non-attendance of one of the parties (without good reason). This option, which arguably reduces the process to a box-ticking exercise, seems to be counter-productive.

After all, MIAMs are either compulsory or they are not. Failure to show up should not be as accepted as a satisfactory excuse in the way it currently is.

Furthermore, even when separating couples willingly attend a MIAM, it only results in the use of mediation in less than a quarter of cases. For this reason the question must be asked, if compulsory MIAMs are not successfully encouraging the use of mediation as a method of alternative dispute resolution, then what will?

A Proposed Solution – Make Mediation Compulsory Instead

It seems that the obvious way to increase the use of mediation is to make mediation itself compulsory.

While this appears somewhat draconian at first glance, if approached sensibly it may have the desired outcome and inconvenience the parties no more than attending a MIAM currently does.

Firstly, it would be feasible to require compulsory attendance at a couple of mediation sessions, while retaining the exemptions that currently exist for MIAMs. The information that is currently provided at a MIAM could either be discussed at the beginning of the session or sent ahead in the post, with the mediation session highlighting the benefits that can be achieved.

After all, the best way to decide whether something will be a success is to try it out.

Those who oppose compulsory mediation will argue that it would be unfair to impose it on the unwilling couples who, to put it bluntly, cannot stand the sight of each other. It is important to remember however, that there is no need for such parties to even see each other at mediation – it can take place in separate rooms, with the mediator going in-between.

The compulsory nature of the first few sessions would also remove the need for one of the parties to suggest the use of mediation, putting the separating couple on an equal footing from the offset.

Compulsory mediation may not appeal to everyone, however the suggestion is born from the fact that couples are already being ‘forced’ to attend MIAMs, which are not obtaining the desired results.  The obligatory nature of this has already been established so extending this principle to require attendance at an actual mediation session would simply increase couples’ awareness of its benefits.

Let’s not forget, mandatory mediation would only be for couples who wish to proceed to court – those who are willing to negotiate by themselves, or through solicitors, would be left alone to do so.

But we think it’s time to face reality – MIAMs aren’t the best way to encourage mediation – mediation is the best way to encourage mediation.”

Katie McCann is head of family law and in-house counsel at Kuits Solicitors in Manchester City Centre. She has a special interest in resolving high value relationship breakdown disputes.

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Bird’s Nest Custody – a New Approach to Joint Custody?

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Kate Banerjee Partner and Head of the Children Department Jones Myers Family Law Solicitors
Kate Banerjee
Head of the Children Department
Jones Myers Family Law Solicitors

Touted as the smart new way to divorce by the media, ‘bird’s nest custody’ is becoming more common in the UK as rising numbers of British courts recommend shared parenting instead of sole custody for one of them.

Bird’s nest custody sees children stay in the family home, while their parents move in and out on an agreed schedule to look after them.

As well as the intended benefit of reducing stress and change for the youngsters, it can also be a cheaper solution for parents who might struggle to maintain their pre-divorce lifestyle.

Here, children would remain in the family home with one parent, while the other would live in a smaller flat, removing the need to provide two bedrooms for each child – complete with toys, fixtures and furniture at each place.

Parents can either swap between homes or stay with family and friends when their ex moves in.

To date, UK courts have not forced bird’s nesting onto anyone; however couples are coming across the solution via mediation, before reaching court.

With many divorcees reporting that it has also brought them closer together as they collaborate on the common goal of securing their children’s best interests, it is likely to increase in popularity.

On the surface, then, this is a promising route to a civilised family life after divorce.

However, it must be borne in mind that no two couples and no two divorces are the same, so there are no one-size-fits-all options. Below are some factors to consider if you’re wondering whether birds’ nest custody is right for your family:

  • The ages of the children. Some may be of an age where they can accommodate this arrangement, but older children may rebel, or feel unsettled by the situation.
  • How you will communicate what’s happening to your offspring. While the arrangement might give children a sense of security, it could also be quite confusing for them and raise false hope that their parents might get back together. Explaining it very carefully – particularly to younger children – is vital.
  •  Co-operation from your ex. The levels of trust and support needed to make birds’ nest custody work are quite rare among ex-partners, as inconvenient ‘real world’ practicalities will inevitably effect the arrangement. For example, one or both of you could meet someone else. There is also the issue of cooking and shopping for your ex, when you must declare that you have lived separately and apart before decree absolute can be granted.

We recommend that boundaries and rules are drawn up, written down – and signed up to before you embark on this arrangement.

Difficulties and obstacles are not insurmountable, but parents would need to compromise and plan and communicate effectively – just as in other child custody matters.

 Kate, is the Head of the Children Department at Jones Myers.   She is highly skilled in cases relating to children including contact and residence disputes.

Kate specialises in child protection law and is a Member of the Child Care Panel with experience representing parents, guardians, Local Authorities and children.

As well as working regionally and nationally, Kate has considerable expertise in international child abduction cases and is a Member of the International Child Abduction and Custody Unit.

Kate has “Higher Court Rights,” something fewer than 2,500 solicitors have in England and Wales, which enables her to offer clients an all-round litigation service.

Clients find her sensitive, caring and approachable and she engenders these principles in all of her team.

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the collaborative divorce process
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Divorce Law to be Replaced – How the Collaborative Divorce Process is Taking Over

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Nigel C Winter - Partner in the Family Department of Rawlison Butler solicitors
Nigel C Winter – Partner in the Family Department of Rawlison Butler Solicitors

There is one thing we can be sure of – if something is happening in California, it will be happening everywhere else within 20 years’ time. And in America we have seen a dramatic increase in the use of Collaborative Law which is now increasing in the UK.

Are the days of the old fashioned acrimonious divorce numbered?

When parties are going through a sensitive transition like a divorce they will often want to go to lawyers who are trained in avoiding conflict and getting them both where they want to be.

And whilst the newspapers are full of celebrities in high profile divorces, there are many more who are to great lengths to stay out of the papers – trust me; Anonymity is the new celebrity!

The Collaborative Divorce Process

In many ways the Collaborative approach to family separation is tailor-made to the requirements of the modern world. It seeks to preserve family life albeit one in which the parents are no longer married.

Co-operating after separation is essential to serving the best interests of the children. Furthermore the model seeks to minimise conflict and offers total privacy. That degree of privacy is not available in the conventional Court-based divorce as many sensitive celebrities have found out to their cost.

Small wonder increasing numbers are opting for the Collaborative approach and, like it or not such people to seem to ‘set the trend’.

How Does it Work in Practice?

Both parties take advice from collaboratively trained lawyers. There would then be a four way meeting between both lawyers and both parties.

The first difference that anybody looking in would notice, is that everyone is on first name terms.

It’s a small thing but it is a vast difference to cross examining someone under oath. The dynamic is completely different and everybody has the confidence to talk freely safe in the knowledge that they are not prejudicing their position.

The lawyers have a vested interest in ensuring that this process doesn’t breakdown as there is an agreement if it does that they would have to stop acting and the parties would seek legal advice elsewhere to take the matter on to Court.

the collaborative divorce process
The Collaborative Divorce Process – a four way meeting between both lawyers and both parties.

Contrary to popular belief, lawyers do not have a vested interest in taking cases to Court, but as that is a perception it is promptly rectified by this very rigid rule.

Are there any disadvantages? Frankly it is hard to see any.

If there is an overbearing spouse or partner then it is well within the realms of possibility that they will seek to use the Collaborative process as a means of getting what they want.

However, each individual case should be ‘screened’ at the outset to make sure that there is the requisite degree of trust, honesty and devotion to fairness.

This will not cover all cases and there is perhaps an inevitable tension between a lawyer’s desire to serve the parties within the Collaborative process and their unyielding professional duty to ensure that their client receives the best advice concerning an appropriate settlement. Where the two conflict, the latter must prevail.

A further boost is given to the Collaborative process by virtue of the fact that the Courts now emphasise the importance of alternative dispute resolution ie avoiding Court.

Indeed it is a pre-requisite in the vast majority of cases that the parties attend Mediation before they can actually issue proceedings.

The shortcoming with Mediation is that the lawyers are not present and therefore their advice still has to be sought afterwards in any event.

However they are present throughout during any Collaborative meeting and ‘on tap’ to advise both parties. One might therefore speculate that had the Collaborative process been more widely available when Parliament enacted this law, that they would have included Collaborative law as an alternative to Mediation.

The Collaborative approach is not limited to divorce either. Both Cohabitation and Pre-Nuptial Agreements can be discussed and drawn up adopting the same process.

With the divorce rate falling and cohabitation an alternative family model, the continued increase in Collaborative Law as a preferred option is set to increase.

Will it replace divorce law? Perhaps not completely but there is every reason to believe that it will in due course be the first choice for dispute resolution over and above the Court.

And about time too.

Nigel C Winter is a partner in the Family Department of Rawlison Butler Solicitors, based in the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.

He has been practicing family law for over 2 decades, is a Collaborative lawyer and a regular contributor to a wide variety of publications on divorce and family law.

 Disclaimer – This document is provided for information purposes only and does not constitute legal advice.

 

 

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divorce at 50

Coping with Divorce at 50 and Beyond

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Muna Saleem Associate Solicitor Crisp co
Muna Saleem
Associate Solicitor
Crisp & Co

You’re done with the hard graft of your 30s and 40s.

The kids have left home, the mortgage is more or less paid and, hopefully, you’re financially secure.

You finally have some time to re-evaluate life and focus on your own needs, and for an increasing number of people this has meant joining the ranks of the so-called ‘silver splitters’ – the mid-life divorcees.

In fact, while the Office for National Statistics has recorded that 2012-2013 (the most recent figures on public record) saw divorce rates drop to their lowest in 40 years, splits among the over-50s are steadily on the rise.

So what has inspired this middle-aged quirk?

Some commentators have pointed to the runaway success of ‘50 Shades of Grey’, empowering women to take control of lacklustre love lives and seek new adventures. Others have simply suggested that couples who married young may have run their course, drifting apart as life goes on, starting a new chapter once the responsibilities of parenthood take a backseat.

In fact, according to a recent survey by Resolution, the professional body of family lawyers in England and Wales, 82% of 14-22 year-olds said they would rather their parents divorced if they were unhappy than stay together just for the sake of the children.

Teenagers and older offspring are likely to understand the ways of the world and adapt to new situations if they can see that it’s in the best interests for you, so it’s advisable to be as open and honest with them as possible, while respecting their relationship with your partner. Don’t try to make them take sides, as this will cause unfair stress on their part.

Society accepts divorce much more so now than in past generations, and if you do decide to end your marriage, it’s important to make your financial and emotional well-being a priority so that you can fully enjoy your newfound independence.

Take Control of your Finances

If you’re looking at the prospect of becoming a ‘Sindy’ (Single Income, Now Divorced), what are the key financial hurdles you face?

  • Dividing your assets, liabilities and property can be complicated, particularly if you can’t come to an amicable agreement with your spouse, or if there are children/dependents involved. If required, get professional help from a solicitor that specialises in divorce.
  • Once you’ve settled the legal aspects, reviewing what you have left after a split is key. Do your investments and pension plans still fit with your goals for the future? Have your financial goals changed? Consider seeking some expert financial advice if you’re not sure.
  • You should also check in on your income vs. expenditure (your budget) to make sure you don’t fall into debt or overspend. Running a household on a single income can be tricky, especially if you’re used to two.

Live your Life to the Full, enjoy your Independence

Being a divorcee is no longer the social taboo that it once was and being newly divorced can be the perfect time to meet new people, gain friends, and seek out new experiences.

There’s always a wealth of opportunities to network, socialise and date, whatever your age or former marital status.

  • Take it slowly if you need to. Find a friend or family member who’s been through something similar, as they can help you get to grips with the dating scene.
  • Join a club, society or local group to meet new people; it can be a fun way to spend your free time even if you don’t meet the love of your life.
  • Make use of technology. As well as the good old-fashioned classifieds, you could try dating apps or websites, which can provide a great way to meet people outside of your normal social group. Dating in this way has lost its stigma and has become an increasingly popular way to find romance.

Take Care of Yourself

Divorce is undeniably one of the most stressful experiences life can throw up, even for the party that instigates proceedings, so it’s important to talk to friends, family and medical professionals if you feel at all anxious. Trouble sleeping and/or dramatic weight loss/gain are the outwardly obvious signs of stress, and depression can follow, so it’s important to open up about your feelings to close friends or trained professionals who can help you get back on track.

While things may sometimes feel tough as you readjust, it’s important to remember that many people overcome the emotional strains to successfully rebuild their lives, possibly finding a new love along the way.

For couples that can maintain effective communication during the separation, mediation can be a very productive alternative to Court battles. Mediators are totally impartial, do not take sides and only offer sound legal advice in order to facilitate ‘good’ divorces with minimal animosity.

There’s no denying that divorce can sometimes be traumatic and difficult, but getting out of an unhappy marriage can also be an empowering experience. A growing number of over-50s are untying the knot and taking bold steps to start new chapters, but it goes without saying that such decisions should not be taken lightly.

Muna Saleem is an expert in family law, and is an associate solicitor at Crisp & Co. and an accredited member of the Law Society’s Family Law Panel. You can connect with Crisp & Co on Facebook.

 

 

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