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What are we each entitled to in our divorce settlement?

What does the law say about how to split the house, how to share pensions and other assets, and how much maintenance is payable.

What steps can we take to reach a fair agreement?

The four basic steps to reaching an agreement on divorce finances are: disclosure, getting advice, negotiating and implementing a Consent Order.

What is a Consent Order and why do we need one?

A Consent Order is a legally binding document that finalises a divorcing couple's agreement on property, pensions and other assets.


\"THE GRAVY TRAIN\" (FAMILY LAW PROCESS)

  • .Charles
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06 Jun 11 #271731 by .Charles
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Pipsqueakthefirst wrote:

I agree and disagree with you Dukey. Just based on the brief circumstance of the lady who stated this thread it is very, very obvious that both legal teams involved went directly outside of the law, allowing such hidious "legal" fees to be racked up when the argument was over £60,000 to pay off a joint mortgage debt.


That is slightly misleading as dizzybee is arguing over more than a £60k debt as can be seen from previous posts such as this snippit:

dizzybee wrote:

My case has been protracted and extremely complex but we had a Forensic Accountant appointed by the court as a joint single expert to look into my ex's business dealings. As Fiona said the cost basically boils down to the complexity of the case and whether your ex is willing to play ball.! I am now 3 1/2 yrs down the line and the report was worth worth its weight in gold. It has taken the forensic accountant 3 yrs to get all the necessary info to do his report. This was after numerous penal attachments as my ex would just not hand over the relevant information. We are applying for a "Bank Disclosure Order" which will hopefully show were all the monies are. I certainly would not suggest trying to do it yourself unless it is very obvious that monies or capital has not been shown in disclosure


I'm not for one second suggesting that the level of fees is acceptable but as cases become more complex it takes more time to sort through documentation and put together the best case. I'm also fairly safe to assume that the forensic accountant's fees and those of the barristers took up a large percentage of the total bill.

It is also *not* "very, very obvious that both legal teams involved went directly outside of the law" to me – there is no such evidence.

Pipsqueakthefirst wrote:

You make your finanical disclosure and I assume that the lady and her husband both did this honestly.


It would appear not from dizzybee's quoted text above…


Pipsqueakthefirst wrote:

If a legal team can see that there are modest assets involved in the case they should BOTH adise their clients to settle and if they will not refuse to represent a dishonest case.


Quite so. Solicitors try to avoid complaints and the easiest way to do this is to manage their client's expectations. In Ancillary Relief cases there are common misconceptions which have to be addressed from the outset. Lots of people think that 50:50 is *law* and that this applies no matter how long or short the marriage is. Lots of people think that if their spouse commits adultery, this disentitles them to a claim on the matrimonial assets. There are other people who want their day in court come what may. If the matrimonial assets are modest, let's say less than £100k, it is not worth both parties going to final hearing and possible spending close to half of the assets on legal fees.

In dizzybee's case, I could not imagine that the legal teams would incur costs approaching half a million pounds if there was no prospect of obtaining payment of those fees. It would also be a surefire complaint if the solicitor obtained an order for payment of £x and hand their client a bill for a muliple of £x.

I also refer to my response above as 'legal fees' usually refers to all fees charged by a solicitor to their client which include disbursements such as forensic accountants and barrister's fees that can take up more than half of the total bill in complex cases. I recall drafting a bill for just over £250k where the barrister's fees alone were £102k + VAT. Expert fees accounted for another £50k or so.

Pipsqueakthefirst wrote:

Going to court with barristers and solicitors and basically making two people bankrupt just because of a divorce is imoral and illegal, end of.


Well, actually it's not. People go to court all of the time and end up bankrupt. I've seen it on boundary dispute matters when both parties are so entrenched in their positions that it requires a Judge to physically attend the site, determine where a boundary actually lies and make an order against the party who was in the wrong. In a case I saw, the losing party used the equity in the property and borrowed against credit cards to finance the matter to trial. That party lost and ended up with a bill from the other side of £100k+. It may seem like a simple task but the original boundary had been erased by the installation of a joint drive (why?!) after which point the dispute occurred and it was one word against another.

There has to be a point where a solicitor ceases to be responsible for their client. A client asks for advice, the solicitor gives advice. The client can follow the advice or choose not to follow the advice. Some clients choose not to follow advice and obtain a more advantageous result. Others obtain a worse result. That is their choice.

It is clear that your case pipsqueak is complex and involved and you feel that you have been treated poorly by the judicial system and the underhand way that your ex and his legal team have conducted themselves. It may be the case that your ex is deluded and thinks he is is the right.

However, yours is not the usual experience that most people have of family law and potentially tarring all legal representatives with the same brush and making sweeping statements – some of which are inaccurate – are unhelpful.

We have a legal system, warts and all, and we have to work within that system. It is flexible in places to allow for the full gamut of circumstances which may be similar in some cases but are unique in all cases.

Even with this flexibility it is difficult to be 100% fair and inevitably there has to be compromise on both sides although the law is hampered by those who refuse to compromise and/or decide to obtain an unfair advantage by being dishonest. This is the issue that the law struggles with most but there is no viable solution to dishonestly at the current time.

My only advice, generally, is that people should try to sort things out amongst themselves. When matter go to trial or final hearing the experience is always stressful, depressing and financially draining. The last of these is amplified as the value of the dispute reduces.

Leaving a judge to make a final decision is always risky as the decision may be against you. At this point reality is brought into sharp focus. There is a lot to lose...

Charles

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06 Jun 11 #271742 by Netter
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In my case I knew from commencement of proceedings that we would have to go to FH. I have been told that 'I' have wasted £60k on legal fees because I wont accept a 70/30 split (in his favour) despite the fact that it was a long marriage, I often earned a similarly high salary, brought similar cash assets and I am now to care for a 10 & 8 year old (he has reduced his care time to one overnight every two weeks)with a necessary restriction on earning capacity (equally on pension provision). I thought all the preceeding court dates were 'going through the motions', we literally have got no further together. Really I would have preferred to fast track to the Judge. Once we couldn't reach an agreement at 1st Appt. we were in for the £50k long haul. I'm not saying that the legal teams were rubbing their hands together but large fees were guaranteed. In some ways I liked the calderbank offer process.

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06 Jun 11 #271755 by hadenoughnow
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Bringing this back to the general point about costs etc ....

What is scary is how quickly costs can rack up.

In my case the estimate for my costs if we had to go to FH was 5-8k. In the event it cost nearly 30k. I am at a loss to know quite how it got so out of hand especially as I had little available cash and had tried to do as much of the legwork as I could myself. The costs really started to escalate when my file got passed to another person at the firm ... someone who did not know me personally as my original legal rep did. I have often joked that because he was new to the fim I was his only case - so he spend a lot of time fiddling with my files even when he did not need to. I think he did rack up costs arguing with the other side about vauations, bringing up conduct etc.. which made things worse.

I think what made it more difficult was that my ex had changed solicitor. His original one was someone my original solicitor knew and could chat to informally. The new one was determined to be a rottweiler.

To be fair to her (which I would rather not be) I guess all she knew about me was what he had told her and I am sure she had a pretty dim view ... I do think though that she should have been held to account for the many pointless and inflammatory letters that were sent (and had to be replied to) as well as for my ex's failure to respond to offers in advance of FDR.

He was on Legal Aid and I really think Legal AID should ONLY fund the costs of going to FH if the judge's recommendations at FDR have not been followed. I offered what the judge suggested, he rejected it ... and then at FH that was exactly what he got.

I agree also that there should be an easier way to get in front of a judge for a FH .... but then that does depend on honest disclosure at the outset.

I really don't think it is fair that one party who is being honest and reasonable should end up being penalised financially (and by having things dragged out)because the other party is unwilling to co-operate.

I understand that years ago arbritrators used to be used to decide financial settlements on divorce. Perhaps this sort of system - or mediators with teeth - is something that may work better (and be cheaper) than the adversarial courts system when both parties cannot/will not agree?

Hadenoughnow

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06 Jun 11 #271761 by dukey
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To some extent a fast track system already exists in that if the judge at FDA things the FDR will be pointless it is listed for FH.

Having said that and bearing in mind only 5% of cases end at FH the FDR should not be taken lightly, for most it is an ideal opportunity to hear what a judge thinks, and most settle at this point.

Dizzy and Pip are both extreme examples of what can happen, 460k is wildly more than the vast majority will spend, in fact most a tiny proportion of that, Pips case is very complicated and crosses from family law to civil which again for most is highly unlikely.

The law and process evolves year on year, personally i hope one day mediators will have a stronger role to play, as Had said with teeth, right now you can just ignore them and head to court.

I do wonder why judges don`t seem to take a more proactive role in some cases, for example one guy was asked at FDR and FH by a judge what he would offer to his wife of 20+ years and their children, he was a high earner she not and they had reasonable assets, his answer both times was nothing, given his history of aggression and unwillingness to negotiate the judge should have concluded the matter with judgment, but no a two day FDR went on followed by an even more expensive two day FH, both with barristers.

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06 Jun 11 #271762 by TBagpuss
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. I do think though that she should have been held to account for the many pointless and inflammatory letters that were sent (and had to be replied to) as well as for my ex's failure to respond to offers in advance of FDR.


the problem is, she can't make your ex respond to offers.She could have (and probably did) advise him to respond, probably even advised him as to what type of response would be sensible, what the options were etc, but she can't put words in his mouthand accept or eject an offer on his bahlf, or make an offer without instructions.

Similarly with the letters. She could have (and agin, I don't know whether she did or not) tried to discourage him, particularly if the letters were repeating the same things, but she can't refuse to follow his instructions.

Where someone is legally aided the legal aid (normally) provides cover up to FDR with the certificate having to be extended at that point.it's necessary to justify extending it to cover a final hearing. (and legal aid can be stopped if a client is requiring their case to be carried on unreasonably)

One probelem is that wehre cases do become very drawn out, it isn't possible to draw a line and say 'this is unreasonable' becasue there are often unknown factors - a lot of cases which become very protracted sdo so, at least in part, becuase there are issues over the value of the assets, or over whether ssets are part of the matrimonial pot. Until you know that answetr, it is very difficult to say what is 'reasonable'

The problem with having a formula is illustrated by the CSA - for some people, it works.For others, it leads to very unfair situations.

of course there are good and bad lawyers, and there are those who do become very confrontational, or who identify themselves so strongly with their client's views that they fail to give objective advice, but these are, in my experience, very much in the minority.

In over 15 years of practice I can only think of 3 individuals I have come across who behaved in that way, out of dozens of lawyers.

I spend a lot of time working with clients to try to help them come to a settlement, manging their expectations about what they can or can't expect to get, and what a court can or can't achieve for them, but I cannt make them do anything, and it would be unprofessional of me to force my views on my clients - it is their life, their money, their assets, not mine. Tehy are free to make their own decisions, and that includes making bad decisions.

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06 Jun 11 #271764 by Netter
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My case is similar to your example. The judge at FDR didn't give much in the way of guidance. I would think that my stbx's team are trying to keep the judgement down to 50/50 and he is going to be poleaxed if it's worse (I've already offered 50/50). But then how does a solictor deal with a client that is not living in the real world? An idiots money spends just the same. My offer probably confused him...probably watched too much Kirsty & Phil.

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31 Aug 11 #285551 by .Charles
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This is an old thread but I thought I'd respond...

If a client is being unreasonable they have to be told as much. It is not always easy but a client who expects the world and obtains less is likely to make a complaint. That complaint will not hold water if the client was advised that their position was unreasonable but it is still hassle to have a complaint to deal with.

Worse still, there are clients who 'listen' to advice but don't 'hear' it. Inevitably, when they get whupped at final hearing and try to point the finger of blame they refuse to accept that what has just happened was in line with the advice that was previously received.

Charles

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