Ten Myths About Divorce Debunked
- AuthorMikaela Rogerson
As a family law specialist I frequently hear misconceptions about divorce but if you're considering splitting up from your husband or wife it's important to have all the facts to hand so you can decide on the best course of action. Here are some of the most common myths dispelled:
1. It’s expensive
There is a perception that solicitors charge a lot for their services, but their fees usually reflect their level of expertise and experience. However, a good solicitor will listen to you, assess your situation and only carry out the work that needs doing and nothing more. Your solicitor must tell you what their hourly rate is before they start work and should give you a costs estimate for your case or any part of it. Estimates should be updated on a regular basis, so you don't have any surprises. In certain situations, you may be able to agree a costs limit with your solicitor which is always worth discussing.
The other point worth noting is that solicitors charge according to the amount of time they spend on your case. Agreeing to do some things yourself (which means that your solicitor doesn't have to), such as writing to your mortgage provider to get a balance on your mortgage, could save you money.
Ultimately it comes down to getting value for money. Discuss your budget with your solicitor and agree how best that budget will get you the advice, support and outcome you need.
2. Using a solicitor will make everything worse
Generally speaking the response to this is a resounding ‘no’. At Andrew & Co our family solicitors adopt the Resolution Code of Practice, meaning we work in a pragmatic and non-confrontational way. The aim is to see you through what can be a very emotional process, with as little difficulty as possible.
In all cases we will look to protect our client's position which can lead to difficult questions that people may not want to answer. However, where there are difficult questions to be asked you are always well placed to have a solicitor support and assist you. It's the best way to help you make an informed decision about your future.
In cases where the parties have not been able to agree but have also chosen not to use a solicitor, matters can get unnecessarily complex and sometimes costly very quickly. Using a solicitor will help identify the issues and bring them to a focused conclusion more quickly.
3. I’ll have to go to court – and that scares me
Not everybody has to go to court; in fact, in many divorce cases the parties don't go to court at all.
Attendance at court is very rare and is only necessary when there is a conflict of evidence or a disagreement for example about the value of an asset. At Andrew & Co we will do everything possible to achieve a negotiated agreement and will only advise court proceedings when there is no other option.
If you do attend court your solicitor will be with you and will explain precisely what you will have to do. Most of the time you will just be asked to give your thoughts on different ideas and proposals and will not have to talk in court. We will do all the talking on your behalf both to the other party and with the court.
Judges know that court can be very daunting and will take this into account. However, the fact that people find court scary can be a good thing as the prospect of having to attend court sometimes helps parties focus on what is important and reach an agreement.
4. My ex won’t agree to a divorce, so I’m stuck
Not necessarily so. The only ground for divorce is irretrievable breakdown of marriage, however, to prove this (at the moment) you have to be able to show one of five situations exists. Some are well known like adultery or unreasonable behaviour but there are also lesser known reasons which are based on separation. The only ground where you need the other party's consent is if you want to divorce on the basis that you have both lived apart for two years.
Regarding the other grounds, it's helpful if the other party is co-operative, but if that's not the case there are other options you can consider to make things happen which we will discuss with you.
5. My ex committed adultery so….
There are so many myths on this subject, so I'll deal with a few of the more common ones we hear about.
1. Morally the children should live with me: This is not a factor which is considered by the courts. The only thing the court will consider is “What is in the children's best interests?”
2. Morally I should have all the assets: Sorry again; you will not be compensated for the emotional distress suffered. The court will look very specifically at the needs and resources of both parties. Behaviour can be a factor the court can be asked to consider but this is very rare.
3. I don't want my children meeting the new partner: This is something we would look at on a case-by-case basis, depending on the circumstances. However, the adultery would not rule the new partner out of the children's lives for ever or completely.
6. There’s no point negotiating, the wife always gets everything.
This is a belief often held by husband's which can either lead to them perhaps being over-generous or over-defensive and can lead to a failure in negotiations. However, the belief is incorrect. The wife doesn't always get everything. The court will look at the parties' individual financial resources and their individual financial needs. The needs of any children will prevail and hence a parent with three children to house will need a larger property than someone living alone. The court will try to ensure that the parties’ standards of living are similar.
7. My ex won’t pay me anything to support the kids, so I can stop him seeing them
Sorry, but how much you pay in child maintenance is not reflected in how much time you spend your children. You are not buying their time; you are contributing towards their daily needs so it doesn't follow that if you are paying nothing you can't see your children.
The amount of child maintenance to be paid is based on a formula. The level of child maintenance payments can be calculated by going to www.gov.uk/calculate-your-child-maintenance
8. We’ve just drifted apart, so we can’t divorce as neither of us has done anything wrong
This myth is more common than you might think. Currently the divorce procedure is in part based on laying blame at one party's feet (adultery and unreasonable behaviour), and the 'blame' type cases are the only ones where you can start the process immediately. However, there is a move towards changing this with a view to removing the 'blame' element.
That said, if you have drifted apart you could look to use the other grounds of separation of either two or five years depending on your individual situation.
If you haven't been separated for two or five years but want to start divorce proceedings immediately sometimes it can be worth asking the question, “Why have we drifted apart?” which may open up other options.
9. As soon as you divorce your financial matters are automatically sorted at the same time.
Sadly, this is not true and has been known to catch people out. The divorce and sorting out the financial issues associated with divorce are broadly speaking two separate matters. That said, you can only ask the court for help sorting out the finances if you have started a divorce and an order can only be made once you have obtained a Decree Nisi.
Financial matters will only get sorted if you address them and you ask a solicitor to finalise them for you.
The first thing to do is make a list of your financial circumstances and ask the other party to do so and then share that information. Make sure you include property, capital, income, pensions and debts. If, once you have done that, you can reach an agreement on how your assets and income should be divided you should ask a solicitor to record that agreement within a court order and then ask the court to approve it.
If you can't reach an agreement, then you need to make an appointment with one of our specialist family law solicitors. Be sure to bring all your financial documentation to the meeting as the more informed we are, the more we can help.
It's worth noting that theoretically all your financial claims arising from your marriage continue to exist until they are dismissed by a court in a court order. They could diminish with time, but there has been a case where a wife was able to claim a substantial sum from her ex-husband years after the divorce was finalised, because an order had not been obtained previously when the couple divorced.
10. You can hide assets from your spouse, so you don’t have to share them.
No you can't. There is a legal obligation on both parties to make 'full and frank disclosure' of all relevant matters. Consequently, you will be asked to provide details of all your accounts, investments, property, pensions, debts and income. This includes overseas property or investments, business interests and dividends (received or expected), any inheritance or reasonably anticipated inheritance, employment benefits including bonuses and anticipated promotions and any interest in a family or other trust.
If for any reason full disclosure is not received the court has the power to order and force the disclosure of all relevant documents. If you don’t comply with the order you will be in contempt of court which carries a prison sentence. So you can see this matter is taken very seriously.
In addition to time in prison you could also face a substantial costs order.
In certain cases where there are complex financial arrangements it is possible to instruct a forensic accountant to ensure full disclosure of all relevant facts is made.
I hope you've found the above helpful and that it has debunked a few of those myths that seem to exist about divorce. If you need to chat further, please contact me on (01636) 593 514 or email email@example.com
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