Am I best using a Solicitor? - Updated 1

Snapshot:

Separated three years ago, marital home occupied by STBX for first 18m but left empty and on market for most recent 18m with no sale success.

First 18m of separation, STBX was working and I was not (unemployed/pregnant, child from new relationship). Second 18m of separation, reversal of situation: STBX is a student, I have full-time job.

Now starting divorce proceedings under English law after discovering Scotland doesn''t have jurisdiction after all

Question:

I suspect that the financial division will end up needing to be decreed by the court as we''ve had three years of attempts to negotiate with no success. I''d be looking for an Order of Sale with fixed deadline (auction). STBX will want to claim some financial contribution from me towards his mortgage payments and other household costs over the 3 years but I will dispute the duration & amount.

Am I right in thinking that I''ll be best to use a Solicitor to help with the financial disclosures, questions etc?

For example, if the standard form only requires 12m of bank statements, these will show that my income greatly exceeds his. But I''d want the court to take into account his higher income for the first 18m, the fact that he''s elected to become a poor student, and that his future earnings will be much higher than mine.

Also, dumb question time but I''ve read four forms & six leaflets so I''ve become confused - when completing the initial Divorce form for the Nisi, what kind of Financial Order am I asking for? I don''t want maintenance or pension, simply to ensure I get my 50% of the house equity and to force the house sale.

Thanks!

On the application for divorce it''s usual to apply for all the orders apart from Maintenance Pending Suit if you aren''t applying for it. That way all the options are open even if you don''t pursue them all.

YOu might want to see a solicitor first to find out where you stand and what options there are even if you then decide to apply for a financial order and represent yourself.

Thanks Fiona.

I think I''ve read too many forms, guidance notes & forums now because I''m totally confused!

I want to get divorced; I need to have some kind of formal document that says we will both sell the house & split the proceeds.

But what order do I do everything so as to ensure that I don''t ''shoot myself in the foot'' or that my STBX doesn''t leave me with no legal recourse by rushing things? Is it Nisi, financials to get Consent Order, then Absolute?

From my perspective I see no point in being directed to mediation or collaborative lawyers because that''s what we''ve been thru in Scotland for the last three years, with no agreement - we were almost at the point of attending Sheriff Court. That''s why I think we''ll have to end up with an English divorce court specifying how/when the house will sell; and because it''s been on the market already to no avail, I''d like that to be forced to auction.

And as mentioned before, I''m really worried that the forms only look at evidence (bank accounts etc) from the last year, when I feel the entire three years evidence (including his stalling tactics) that needs to be considered. If he is going to end up winning a larger award purely because he''s CHOSEN to become a student, then I may as well CHOOSE to become unemployed again before pursuing this divorce.

Don''t read too much, it will turn your head upside down.

In England & Wales you need to apply for the first part of divorce, the Nisi decree, before the courts can make an effective financial order. The application for divorce is form D8and as above you tick the boxes for the financial orders to leave your options open.

Then you may apply for a financial order using Form A. There is an expectation that in most cases the parties will attend a Mediation Information and Assessment Meeting before the court will hear a financial case so you also need Form FM1 to demonstrate that you have complied with the protocol.

It''s possible for the applicant in the divorce to apply for the final part of the divorce, the Absolute decree, 6 weeks after the Nisi. There may be reason not to and the usual practice is to apply for the absolute after or at the same time as the financial order is made. However, the respondent can apply for the absolute 4.5 months after the nisi and unless the applicant can show they would be financially disadvantaged by no longer being married the absolute will be granted.

However, being divorced doesn''t prevent either party from making future financial claims. Only when there is a final order settling the finances are future claims dismissed.



Once you have applied for a financial order the court will set a date for the first court appointment. Both parties are required to complete and exchange form E for disclosure. Then they compile a list of questions and you can then ask for bank statements going back more than a year. When sharing assets potential incomes are a factor so becoming a student or unemployed to avoid a spouses claims won''t wash.

At the first hearing the judge will decide what further information is required to assist the court in making a decision, which questions should be answered and sets a timetable for future hearings.

Hope that helps.

Thanks again Fiona, that really does help.

I think I''ll go down the line of Nisi, start the Financial Order, but not delay the Absolute as otherwise I feel like I could still be here in another three years time. At least if the divorce gets completed, that''s one thing out of the way. (I do like the fact that England handles the issues separately!)

I''m going to go and post a question about mediation in the appropriate section of the forum!