A guide written by Wikivorce member LittleMrMike
FIRST QUESTION -SHOULD YOU SELF REP AT ALL ?
IS IT A FALSE ECONOMY ?
Perhaps this is a question we need to address right at the outset.
Litigants need to be well aware of the potential cost of financial proceedings in divorce. They can easily run into five figures. But it does not necessarily have to be that way.
If both parties are committed to reaching a deal that is fair to both sides, then it is often possible to reach an agreement by negotiation or mediation at a reasonable cost.
If you can resolve your issues relatively amicably, then there is at least a reasonable chance that you and your ex can remain on reasonable terms when it’s finally over – which is pretty important if you have children.
But in all litigation ( and divorce is no exception ) you need to balance two considerations. One is what it is likely to cost you to bring proceedings. The other is what you could reasonably expect to recover ( or whether you are likely to recover anything ! )
Let’s put it this way. Assume you have received legal advice that a Court might award you assets somewhere between £45-50K - BUT it might cost you say £10K to bring proceedings. I imagine most people would think that it might be worth spending £10K or so to achieve that sort of result.
So if you have a reasonable chance of recovering a substantial sum from your ex ( or to put it the other way round, if you don’t want your ex to make a fortune out of you ) it might not be a good idea simply to say you can’t afford to bring legal proceedings . There may be ways whereby you can finance an action to be paid out of what you eventually recover. A lawyer should be able to suggest ways in which this could be done. But as far as the writer knows, the alternatives are :
A Sears Tooth agreement, which means you pay your solicitors out of the assets you eventually recover. Needless to say, not all solicitors offer this facility.
A bank loan, again to be repaid out of the assets you recover.
It is sometimes possible to ask for a sum to cover expected legal costs in maintenance pending suit. But this is likely to be useful only if your x2b has considerable means.
Legal aid has now been withdrawn in all but a handful of cases.
When considering the subject of costs, there is one important point to consider.
If you run me down and break my arm, and I sue you for damages, you ( or more likely your insurers ) normally have to pay my costs, so that the value of the award is not eroded by my having to take legal proceedings.
But in divorce related financial proceedings, the normal rule is that each party pays his/her own costs. So, to quote the previous example, if I incur costs of £10K to recover £50K, then too bad, I’m left with £40K. But that. of course, is better than nothing at all.
A word about mediation. In principle it’s fine. Mediators aren’t judges but they do know quite a lot about the law. If you can reach agreement, almost certainly you will need a consent order (which for reasons which we will explain, should be drawn up by a lawyer ) which makes your agreement legally binding and enforceable.
The problem with mediation/conciliation/arbitration/ negotiation is that it takes two to make it work.
But you know your ex better than anyone ; and you are best able to judge whether (s)he is likely to co-operate with any attempt to settle the matter by mediation, conciliation, call it what you like.
We often come across the type of family litigant who, quite frankly, will simply refuse to engage with the process. In such a case there is no point trying to negotiate with a spouse who is totally uncooperative.
My own view, for what it is worth ( and remember, this article is designed to save you money ) is that it is always a good idea to have a preliminary discussion with a lawyer who specialises in family matters ( this is a most important point ).
As a general rule of thumb. Self repping is likely to be a possible option where the financial affairs of the couple are relatively straightforward . But then again, it is cases like this where negotiation and/or mediation stand a reasonable chance of success.
Get your ducks in a row
In the preliminary stages of a financial negotiation, the most important thing, by some way, is to assemble the information that you need – or that your solicitor will need, if you choose to employ one.
The Form E ( your financial statement ) is a critical document, and if you have a look at it, your immediate reaction is to reach for the whisky bottle and get sloshed. The writer has often wondered in his wilder moments ( he gets them from time to time ) whether there is a case for a ‘ Form E Lite ‘ for use in simpler cases.
One thing you need to remember is that your x2b will see your list and you will see his/hers. You have the right to ask questions about his/her list, like
When we lived together you spent £x on broadband, so why’s it gone up to £y ?
How did you manage to afford a luxury cruise and now you say you are skint ?
(S)he has the right to ask you questions too.
The Court ( and your solicitor, if you have one ) needs certain basic information. Some of that information takes time to assemble ( for example pension valuations ) and it is likely that your pension provider may not be in too much of a hurry. The earlier you ask for them, therefore, the better your chances of getting your Form E in on time.
So get hold of the form, take a whisky, or whatever takes your fancy, and go through the form and work out what information you will need.
And one final tip – try to arrange to lodge the Form E at the same time as your ex. To file yours first can sometimes give the other side an advantage.
So, to sum up, there are two principles that divorcing couples always need to bear in mind.
THE MORE YOU SPEND ON LAWYERS AND COURT COSTS IN FINANCIAL PROCEEDINGS THE LESS THERE IS FOR YOU AND YOUR EX.
IF YOU ARE IN THE POSITION OF BEING THE LIKELY RECIPIENT OF FINANCIAL SUPPORT FROM YOUR EX SPOUSE, IT MAY NOT BE A GOOD IDEA TO IMPOVERISH THE MAN ON WHOM YOU ARE GOING TO RELY FOR YOUR FUTURE FINANCIAL SUPPORT.
PART ONE – SOME GENERAL ADVICE ABOUT PROCEEDINGS IN GENERAL
The first thing to remember is that, in all probability, your hearing will not be in open Court.
It will be in a private room, with a long table. The judge will sit at the top and (s)he will not wear robes.
On the judge’s right and left will be the advocates acting for both parties. If the parties are not represented, they will sit at the top of the table.
The public and press, almost certainly, will not be present.
Address the judge as ‘ Sir ‘ or ‘ Madam ‘ or ‘ Your Honour ‘ if it’s a County Court judge, but not ‘ You stupid ***** ‘ - unless you want to end up in the cooler.
‘ My Lord/Lady ‘ is the correct form of address for a High Court judge, but you’re not likely to encounter one of these.
For a District Judge, Sir/Madam is fine. You should be able to find out the judge’s name from the list for the day. DJ in this connection stands for district judge, not disc jockey. If it’s something like ‘ His Honour Judge Harris ‘ then again you know. Names changed to protect the innocent.
Don’t go into Court looking like a scarecrow. That should be obvious.
It should also be obvious that going into Court dressed in a Savile Row suit, a silk tie, diamond cufflinks and a Rolex watch, and then pleading poverty, is not intelligent. Don’t laugh – it has been known.
Part Two : Advice relating to financial proceedings, especially maintenance
What do you want ?
You must be very clear in your mind as to what your objectives are. Sounds obvious, doesn’t it ?
But what would you say if the judge asks “ What order are you asking the Court to make, Mr / Mrs Smitheringale ? “ ( Because it’s quite possible that (s)he will ask you that ). If you have any sense, you will have your reply ready.
My suggestion is that you write down a list of what you want, the terms of the order you are seeking before the hearing. Yes, I know it sounds obvious, but too many people ‘ freeze ‘ or forget things in the heat of the moment.
Do be realistic about what you are going to ask for. This is where some legal advice comes in very handy. It is definitely a help if you have advice from someone legally qualified, to tell you what the most favourable outcome is and what is the worst case. Judges are only human, and if they think you are being too greedy, or too niggardly, they won’t like you for it – and half the battle is to get the sympathy of the Court.
It’s normal to ask for a little more than you actually expect to get, just the same as you might if you were putting your house on the market – you never know, someone might pay it. But I’m not too sure it pays to come across as greedy - or stingy either, come to that. Ask yourself :
What is the most important to you ?
If you feel you need to make concessions, what are you willing to concede ?
Always tell the truth. If you are caught in a lie, it discredits the rest of your evidence.
If the other side makes a statement you disagree with, you must challenge it. Otherwise, the Court will simply accept it.
It is definitely not a good idea to lose your temper.
There is little mileage in telling the Court what a jerk your ex is/was. You may be right, of course, but if you intend to raise conduct as an issue, then the time to do it is early on – well before the hearing.
It’s helpful, and may save time, and therefore money, if you can identify the areas on which you can agree. As previously noted, judges are only human, and a judge will want to try and identify the areas on which the parties are in dispute and on which (s)he, as the independent arbiter, will be called upon to adjudicate. The writer has seen some judges/tribunal chairmen who were very good at this, got straight to the point, brushed aside the irrelevant flummery, and were respected by advocates, even if they sometimes had a hard time.
Do make notes in advance
People can easily ‘ freeze ‘ in Court, and forget what they intended to say. As an antidote to this, write out the points you want to make, and the questions you want to ask and do it BEFORE the hearing.
Be familiar with the statutory criteria in section 25 of the Matrimonial Causes Act 1973. The judge is bound by statute to bear these criteria in mind, so it will pay you to know what they are ( and consider how they might apply to your own situation ).
But in lower income cases ( and I’m assuming the likelihood is that self reppers can’t afford a lawyer ) then the predominant factor will usually be NEED. The first thing a judge has to do is to meet the needs of both parties – not just yours. Where money is tight, it may be very difficult to fund two households when formerly there was only one, and it can be an exercise calling for a considerable degree of skill – far more so than when there is plenty to go round. So the judge has to assess the needs of the parties as a starting off point.
In debt collection cases, people often have to draw up a financial statement setting out their income and expenditure , which is used as the basis of an offer to pay by instalments.
In such cases, the debts involved are often quite considerable, and keeping up the payments over what might be quite a long time is very definitely cold turkey. and can require considerable willpower. For this reason, debtors are advised to leave themselves some breathing space for the occasional luxury or treat.
If this is true for debts, then it must surely apply with even greater force to spousal maintenance, which may, in extreme circumstances, be payable for life.
The following guidelines might also be of some help in setting out your needs on a Form E :
Always leave something in hand for contingencies and unforeseen expenses.
Always allow for the occasional treat or night out.
Don’t forget holidays, even if it is only a guest house at Sunnycliff on Sea.
Try and support your figures by receipts. You should have some general ideas from the time you lived together.
Make sure your lifestyle is consistent with your declared means. Similarly, do the same exercise for your ex.
In general I think it’s a good idea letting your figures do the talking for you. A well laid out statement, supported by receipts, is very hard to attack. Advocates have a rule that the truthful witness is always the hardest to cross-examine. Not to mention that the Court will like you for it, and half the battle is getting the sympathy of the Court.
What if - - - - -
In financial proceedings. There is one tip which is definitely useful. I’m afraid it does involve you doing some preparation. But if you are good with a spreadsheet, hopefully it won’t involve too much of your valuable time.
Usually what you find, when working out what maintenance should be, is that the figure will be somewhere between two figures. Let’s assume, for illustrative purposes, that it is becoming obvious that the spousal maintenance is not likely to be less than £300 p.c.m and not more than £500 p.c.m.
What you do, then, is to work out the effect on both parties if the maintenance were £300 p.c.m. I stress ‘ on both parties ‘ because this little exercise is primarily for the benefit of the judge. Then you a similar calculation at £350 p.c.m., £400 p.c.m. and so on.
What hopefully the judge will do is to make a judgment as to which level of maintenance strikes a fair balance between the needs of both parties.
Sometimes, it may be necessary to bear in mind that spousal maintenance may have an effect on benefits.
I have said before that it’s always best to support your financial statements with receipts. I believe it is true that judges have a nifty little book of words which will tell them what Mr Average is likely to spend, say, on food, if he has three mouths to feed.
Somewhere over the rainbow
We all ‘ know ‘ that, at the end of every rainbow, there’s a pot of gold.
But, of course, there isn’t. It only happens in fairy tales. Sob !!!!!
But lawyers have a term ‘ the crock of gold syndrome ‘ because it is fairly common for former spouses to accuse the other of hiding assets. And in some cases it is true. But only some !
The fact that this suspicion of hiding assets has got a name suggests that it isn’t as rare as you might think. If there is one thing that divorce lawyers hate, it’s a client who wants them to make allegations of this nature with no evidence to back it up.
Of course, if an ex husband is pleading destitution and at the same time, is living the life of Riley, that is certainly relevant. But vague unsubstantiated claims of concealment are unlikely to get you very far and are best avoided.
Self repping is definitely not recommended if you are dealing with cases where a wealthy partner is trying to conceal assets or dispose of them – unless, that is, you happen to be a forensic accountant.
Part Four – Variations of spousal maintenance
Applications for variation can come about :
Because one spouse applies for it :
Because one spouse is in arrear with the payments, the recipient tries to take enforcement proceedings, and the other counters by applying for a reduction.
It is never a good idea simply to reduce payments or stop them altogether without any warning. Of course, if you’ve been sacked or made redundant on the spot, and there is no money coming in, you can’t pay what you don’t have ; but at least don’t delay applying for a variation. The Court will have come across this type of situation umpteen times.
In the writer’s view, it is almost always advisable, if you intend to apply for a variation, to write a firm but polite letter explaining why you can’t meet the payments and suggesting that the supported spouse should consider the possibility of applying for social security benefits and/or go to mediation. This letter should be sent recorded delivery and you should ALWAYS keep a copy, and of course, evidence of posting. At lease this shows you are trying to be reasonable.
Your ex may have little choice but to agree to a reduction if you have no income other than benefits, but sometimes there is a redundancy package, and if there is, it seems fair to split this to cushion the blow for both parties. This subject is dealt with in more detail in the article on Spousal maintenance which you will find in the wiki library.
The purpose of writing a letter is at least to give negotiation a chance.
There are a number of preliminary considerations of which you need to be aware before applying for a variation.
The first is expense , unless, of course you are self repping. It might not be sensible to spend, say, £5000 and securing only a small reduction.
Applications for variation can be cost sensitive. In plain English, this means that the Court has the power to award costs. And is likely to do just that, if it considers that one party has behaved unreasonably. This is one of the reasons you write a letter – namely to show that you are willing to negotiate.
The second is that the Court will review the whole situation afresh. It won’t confine itself to looking at changes in your circumstances. It will look at your ex’s too.
To succeed, you normally have to show that circumstances have varied since the date of the original order. This is easy enough if, for example, you have retired or lost your job. It is much harder, however, if some time has elapsed since the original order.
It is therefore, normally necessary to produce the Form E’s which were exchanged when the original order was made. This is very important advice. Always keep them even when the hearing is over, for the same reasons.
Part Three – Housing cases
In most cases, what is to happen to what used to be the love nest made for two is the central issue.
If there are dependent children, then the Court is required by statute to prioritise the need to secure a roof over their head. Indirectly, this includes the need of the parent who has day to day care.
Ideally, both parties should have homes that will allow the children to have staying access with both parents. Sadly, this is not always possible.
There is an article in the wiki library called ‘ Housing options after separation ‘ which sets out
The various options open to a Court
The advantages and disadvantages of each option
The arguments you can use
The arguments that the other side are likely to use against you.
If housing is an issue, I recommend that you read this article.
An absolute priority for a Court will be to ensure that both parties are adequately housed. Where there are dependent children is a top priority, and this indirectly has the effect that the Court must be concerned primarily with the needs of the parent with care. Ideally the non-custodial parent should have a house that will allow him/her to have the children for overnight stays.
It does not necessarily follow that one or both parties must be re-housed in the former marital home. Nor does it necessarily follow that a spouse who was an owner occupier before divorce must necessarily be one afterwards. Divorce, unfortunately, usually does involve some reduction in lifestyle for both parties.
One thing that must always be borne in mind is that there is no point in the Court awarding the right to live in the former marital home unless (s)he can afford to live there. If you are a wife who wants to remain in the FMH, you need to convince a judge that this will be possible.
One important tip. The author is retired and has no financial interest in giving this advice.
Do not try to draft a consent order yourself. It is simply not a job which people without legal qualifications should attempt. The writer has seen orders drawn up by solicitors that almost made him cringe.
Wikivorce can arrange for consent orders to be drawn up by solicitors at a reasonable price.