17th Jan 2020

What are my divorce options?

When a relationship ends the number of things that need to be sorted out can sometimes be overwhelming. It is hard to know where to start. One of the items you need to consider is the how you will try and resolve things with your ex-partner. This outline give you the options you can choose from and give you some pointers as to which might suit you best.

Option One: DIY Divorce

It is very easy to believe that you can sort things out direct, with no professional input. You should know what you have, after all, right? If you have few assets, don’t own a house and don’t have a pension then that might be right. The costs of using a lawyer might be disproportionate - though be aware that if claims aren’t dismissed then they can remain open, which might mean a claim is brought several years in the future when things have changed and one of you might be much better off then the other.

However, if a house, business or pension is involved and if there are children, it is almost certainly going to be worth getting professional advice. What you or your partner might perceive as fair, might not be what the court’s see as fair. You could easily inadvertently agree to something that shouldn’t agree to or not get an asset or payment that you should be due to. At the very least, get an initial meeting with a lawyer and find out your rights and what you might be entitled to.

Option Two: Going to court

This is the route that everyone knows about and most people want to avoid. It is expensive, can last for a year or two and will almost certainly mean that any hope of a reasonable relationship with your ex in the future is destroyed. Sometimes though, starting court proceedings is necessary. If there are issues about non-disclosure of assets, your ex-partner doesn’t accept the relationship is over, or holds out for an unreasonable settlement, then court may be inevitable to assert your rights. In abuse cases or cases of coercion or control it may also be the best option.

Remember though that very few court cases proceed all the way to a final hearing, the vast majority do settle at some point before that. Litigation is a three part process, an initial hearing to clarify the issues; a second hearing where a judge tries to broker a deal and gives his/her views on each party’s offers; and a final hearing if all else fails when you will each be cross-examined and a judge will then tell you what is going to happen.

If we feel litigation is necessary we will always advise you why we think this and will carefully discuss the pros and cons and the costs with you first.

Option Three: Instructing a divorce lawyer

You can instruct solicitors to negotiate on your behalf – this does not mean court action but rather they enter into correspondence with the solicitor acting for your ex-partner and hammer out a deal.

It can take time and there is a cost to this, but might be the best choice if there are abuse or control/coercion issues or if you feel that you will need a lot of support. This is quite a common approach and in general this is an approach which allows you to reach a solution.

Option Four: Mediation

If you can still communicate with your ex-partner in a reasonable way this might be a suitable option for you – being prepared to listen to each other and a willingness to compromise will be required. You will also need to be confident that you can discuss things with your ex without your solicitor being present to give immediate advice. If there are abuse or coercion/control issues then mediation is probably not suitable.

Mediation involves you both sitting with a mediator who will help the two of you come to an agreement. The mediator will not give legal advice but facilitate the discussions between you. If all goes well you end up with a “Memorandum of Understanding” that you then take to your solicitors to be put into a legally binding form (the Memorandum is not a legal document). It is sensible to take some legal advice before entering into mediation so that you have an idea as to what outcomes are realistic.

Option Five: Collaborative Family Law

Collaborative law is similar to mediation in principle but operates in a different way. It involves meetings with your ex-partner but you each have your lawyers present. It is a commitment to finding a solution face-to-face round a table and all four of you sign a contract not to litigate. It also allows instant access to legal advice, which can be important and essential if there are complex issues to address such as privately-owned businesses or pensions.

The parties still need to be willing to listen to each other and compromise. There is a catch with this process, a deliberate one. If for some reason the negotiations break down and litigation becomes necessary then you must both instruct new solicitors. This is to tie all participants into the process and to avoid threats of “take it or I’ll go to court!”. In reality very few collaborative cases breakdown.

Collaboration and mediation allow the couple to retain control of what is going on, to consider issues that a court won’t take into account and in most cases ensures that the couple still have a reasonable relationship at the end. That is very important if there are children involved. Collaboration also goes at the couples’ pace rather than have time constraints imposed which will happen in court proceedings.

Choose the right option for you

Ultimately, no two cases are alike – we all have our own unique circumstances and goals. Before making any decisions on which route you wish to take, it is important to sit down and consider your options.

Identify the future you want for you and your family and take the path which will help you get there.  

Danielle Day is head of Berwins' Family Law team. She has been recognised in industry guides Chambers and Partners and Legal500.

Berwins' dedicated and friendly team is here to help. If you have a matter you would like to discuss with Danielle and the team, please get in touch by calling (01423) 509000 or use our contact form online and we will get back to you as soon as possible.

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