13/12/19

Divorce Advice – Kitsons

Splitting up or getting divorced can be one of the most emotionally difficult and stressful events a family can go through. It’s natural to feel confused about what to do next.

Getting the right advice can help guide you through the divorce process and the difficulties of what can be an emotional roller-coaster.

Making the decision to file for divorce is never easy. We understand how daunting it can feel to have to approach a divorce lawyer to discuss formally ending your marriage. That’s why we’ve put together this list of 16 questions to ask your divorce lawyer.

It’s important to note these questions and the information provided are just a general guide and do not constitute legal advice.

Q1 What are the first steps I should take when divorce becomes inevitable?

Advice will vary on this depending on the circumstances, but our advice is that:

  • You take steps to ensure the personal safety of yourself and any relevant children
  •  You instruct one of our specialist family solicitors to advise you on the relevant issue in your particular case
  • You legally obtain all possible information in relation to the financial circumstances

Q2 Should I go to a therapist, divorce consultant or mediator alongside my lawyer?

This is a personal preference for each individual. Therapy or counselling is relatively common. Divorce consultants are rarely employed and can add significant expense. Our specialist family solicitors will advise you when it is necessary to engage a mediator if it is necessary at all.

Q3 Do you have to be separated to get a divorce?

Yes, you do have to be living separately. However, it is possible to live separately but within the same household. Not everyone can afford to run 2 households while they divorce.

Q4 What is a no-fault divorce?

A ‘no fault’ divorce is one where neither spouse is blamed for the breakdown of the marriage. Currently the only options for applying for a ‘no fault divorce’ follow either a 2 year separation (with the agreement of both spouses) or a 5 year separation (where agreement is not required). If a spouse would like to apply for a divorce without waiting either 2 or 5 years they have to apply either on the basis of the other party’s adultery or unreasonable behaviour.

The laws is likely to change in the near future so that all divorces take place on a ‘no fault’ basis with it no longer being possible to file a petition citing unreasonable behaviour or adultery. You can find further information regarding this topic here.

Q5 What is an uncontested divorce?

An uncontested divorce is one which is not defended by your spouse. Defended divorce proceedings are extremely rare and will hopefully become rarer still when proposed changes in the law come into effect.

Q6 How much does it cost to get divorced?

The person starting the divorce can expect a solicitor to charge in the region of £500 plus VAT for dealing with an undefended divorce. On top of this the person starting the proceedings will usually have to pay the Court fee of £550 but exemptions can be available for those on a low income.

The divorce is separate to the financial matters and any proceedings relating to the arrangements for children. These matters can add significant costs and generally speaking legal aid is no longer available.

Q7 How long does it take to get a divorce?

Depending on the efficiency of your local divorce centre it would normally be anywhere between 4 and 6 months for a straight forward and undefended divorce.

Q8 Will I have to go to court?

It is very unlikely that you would have to attend a hearing in relation to the divorce itself. This tends to be a paper exercise unless the divorce proceedings are defended.

If there is a dispute in relation to the arrangements for the children or the financial matters then it is likely that Court attendances will be necessary.

Q9 How will our property be divided?

In the absence of an agreement the Court will approach the matter in different ways depending on the length of the marriage. For example, after a long marriage (which could be anything over 10 years) the starting point is the equal division or sharing of all of the marital assets. However, financial needs must be met where possible and it is therefore not uncommon to move away from starting points especially where there are dependent children. The Court will also be concerned that any division is fair and reasonable to both parties. When having considering what is fair and reasonable the Court will consider the following factors:-

  1. the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
  2. the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
  3. the standard of living enjoyed by the family before the breakdown of the marriage;
  4. the age of each party to the marriage and the duration of the marriage;
  5. any physical or mental disability of either of the parties to the marriage;
  6. the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
  7. the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
  8. in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

Q10 Who will have to pay off our debts?

The Family Court has no power to apportion debts. If debts are not paid then a creditor may take enforcement action against the person whose name the debt is in. If the debt is held in joint names then it is likely that the debt will be joint and several, which means that the creditor can pursue either debtor for the full amount. Any debts which are shown to have benefitted the family as a whole will usually be repaid from the sale of marital assets prior to any surplus being divided.

Q11 How is child support determined?

Child maintenance is now usually calculated by reference to a fixed formula. The Child Maintenance Service can become involved in the event that the parents are unable to agree matters between themselves. The Child Maintenance Service has a useful child maintenance calculator on their website.

Q12 Do I need a divorce lawyer?

There is no mandatory requirement to employ a solicitor to represent you. However, the right lawyer can protect your interests and support you through the process.

If you needed an operation would you do it yourself?

Q13 What are the different grounds for divorce?

There is presently only one ground for divorce and this is that the marriage has irretrievably broken down. You can prove the irretrievable breakdown of the marriage in 5 different ways namely:

  1. That your spouse has committed adultery.
  2. That your spouse has behaved in a way that you consider unreasonable.
  3. That you have lived separately from your spouse for at least 2 years and your spouse consents to a divorce.
  4. That your spouse has deserted you for a period in excess of 2 years.
  5. That you have lived separately from your spouse for at least 5 years (no consent required).

The law will be changing soon and petitions based on adultery and unreasonable behaviour will become things of the past.

Q14 What documents will I need for my divorce?

The only document that you require to start a divorce is the original marriage certificate. If you were not married in the UK and the marriage certificate is in a language other than English then a formal transcript will also be required.

Q15 What is the most common mistake made during a divorce?

It is understandable that when a relationship breaks down, things can become heated.  It is important to try and avoid unnecessary upset around the children and to treat one another with respect.  It is much more likely that you and your spouse will be able to resolve matters between you if you can behave reasonably towards one another.

Q16 What is the best advice for someone who is considering divorce?

Different lawyers will usually have different views on this but, the best advice is:

  1. employ one of our specialist family solicitors to guide you,
  2. be respectful of each other
  3. do everything that you can to ensure that any relevant children do not become involved in arguments
  4. do not send text message or emails which you would not want a Judge in the Family Court to read and
  5. do not post your private business on Facebook!

Divorce support is crucial during this time. Our team is experienced in handling family and divorce situations in a sensitive and caring manner.

Please get in touch with the Family Team to find out how we can help you with any family and divorce situations, please contact your local Kitsons office:

  • Torquay – 01803 20 20 20
  • Exeter – 01392 45 55 55
  • Plymouth – 01752 60 30 40

Alternatively you can email us at advice@kitsons-solicitors.co.uk

Kitsons Solicitors - Tony Hunt

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    13/12/19

    About the author

    Kitsons Solicitors - Tony Hunt

    Tony HuntPartner and Head of Family

    Tony is a Partner and Head of our Family team

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