What clients might be suitable for the One Solicitor: One Couple process (also known as Solicitor Neutral or Resolution Together)? I’m delighted to be joined in this blog by Dr Angharad Rudkin, a child psychologist, author and creator of the What...
Sorting out the finances
Married, Same Sex Marriage or Civil Partnered (CP)?
Finances to consider upon separation and divorce:
- All kinds of pensions (private, work, state, additional state pensions, etc).
- School fees and other children's expenses
- Property (houses, land, shops).
- Trusts that you benefit from or will benefit from.
- Businesses.
- Cash.
- Savings, ISAs, PEPs, TESSAs, National Savings, Premium Bonds, etc.
- investments, stocks and shares.
- Cryptocurrencies and ‘web’ based assets.
- Insurance policies including endowments.
- Items in the family home which are called chattels.
- Other items (art, wine collections, cars, jewellery) worth more than £500.
- Money owed to you (which is usually an asset).
- Any personal or business assets not yet disclosed.
- Unrealisable assets, share option schemes, business expansion schemes, Futures, Commodities, an asset that is likely to be received in the foreseeable future, any asset held on your behalf by a third party.
- Anything else even if held outside England and Wales.
- Debts.
- Tax due or might be due if proposed transactions take place (including Capital Gains, Income, etc).
- Income and outgoings (outgoings are called income needs).
How to carry out financial disclosure?
- The Form E is useful as it mentions everything you need to remember and has prompts at the back for the documentary evidence you need. Usually, we swap them at the same time (called mutual exchange). These days by electronic means but some still print and post.
- You might simply agree a list of 1-18 (above) and go from there. We mutually exchange the documents that evidence.
Missing documents or questions you may have
You will very likely consider the forms and documents and decide if there is anything missing. You can then ask questions in an informal way - by asking questions in the meetings or more formally in a Questionnaire.
These are then replied to, hopefully satisfactorily.
Agreeing the Asset Schedule (summary spreadsheet)
You will need to have a summary document (most likely a spreadsheet) that shows where the assets lie. To do this you will need to agree all the values. This is a big part of the work you will do in all the processes I offer.
What will you do with the assets, etc that you have?
If you haven’t already you need to imagine your future life. You will need to be realistic, for example you will not be able to keep all the assets!
The questions we must examine are:
i. Expert reports needed?
Early on we may need to ask experts to help with valuations. Do you need an accountant to calculate the tax, to provide a value of a business, to work out a fair pension share (see Pensions and Divorce)? The reports will take some time to come in so we need to get on with those sooner rather than later.
ii. Where will you both live? Location, costs and affordability are all to be considered.
Where will you both live? There is lots to think about, what will you sell and buy and where.
iii. What will you do with the assets that aren’t property?
You may need to use some or all:
a) To house you both;
b) To produce income upon retirement;
c) Because you have excess to meet these needs and you are ‘sharing’ the excess;
d) You may retain some of the excess because it was an inheritance or you had it before you married...
I will advise you on how the law treats these assets and what a fair outcome is in your circumstances.
You will need some help with working out what to do with your assets - take advice from an independent financial advisor see Working with Others.
iv. Stuff in the house(s) - known as chattels. Consider what you need in your new home or if you are staying put what will you keep and give to the other to make a new home?
Sometimes this is easy - just a sharing of things you own so that the new home is kitted out. You’ll need to work out the cost of replacing them or of buying new things for the new home.
If you really can’t agree try these strategies:
a) You both put (different colour) stickers on the things you want. There may be only a few items you both want.
b) Either flip a coin for each item to choose who gets what.
or
c) Make a financial offer for those items.
v. What happens with the pensions?
See the section called Pensions and Divorce.
vi. How will you distribute the income you both have? There must be enough to meet BOTH your needs and those of any child(ren).
There are two forms of sorting out the possible sharing of income.
The first is statutory (depending on the income of the payer) and is paid for the care of the children. Most parents use the Child Maintenance Service (CMS) Calculator as a starting point to work out child maintenance. They also consider what the children’s expenses are and set aside a pot of money for that or decide to pay a certain amount each into an account to meet them.
The second is spousal or civil partner maintenance - there is no formula and each case must turn on its financial facts. Sometimes, it is payable so we'll have to work out the amount and its duration (for how long it will be paid).
vii. How will you deal with any debts?
Most often couples can agree that debts are debts of the family and to be paid off out of any assets you have or from future lending. These debts will need to be woven into your settlement. Some may argue for a different outcome, because of poor behaviour or because they were accrued after the separation. Talk to me about debts, they often need to be carefully sorted out.
Essentially, you will need to consider how to pay for your legal and other professional costs.
To make your agreement on the finances legally binding you must take further steps:
1. If you are married, in a same sex marriage or in a civil partnership I will prepare a consent order (an application for a financial remedy order) for checking and for both of you to agree. You then sign it and I’ll forward it to the court.
The Judge will consider it and then (if it’s fair) will make a financial remedy order. You will need one of these if you want to share pension(s). This is part of the divorce process and is submitted to the court at the conditional order stage of the divorce.
or
2. If you are not married or don’t wish to divorce at this stage (if you are married) then you and I will draft a Deed of Separation for you to execute (both of you sign this in front of a person who is over 18 and not a relative). However, remember that a Deed of Separation is not necessarily the final word - only a court order as set out in 1 above is.
or
3. A Judicial separation - which can also be obtained by consent from the court (see 1 above) but you remain married.
I will draft all the legal documents you need.
Working with others apart from Jo
There’s so much to consider that it will likely feel overwhelming and something to just hurry up and finish. Yet, these are probably some of the biggest decisions you will ever make. The ramifications of the decisions made now will be with you until you die (and that’s not an exaggeration) and after (not the afterlife but for your surviving family/friends). I recommended that you work with someone who will help you understand the consequences of the choices you make now. It’s so much better to ‘cost out’ each of your ideas to see what the likely financial outcomes will be. Although nothing is guaranteed, of course, broadly speaking you can get a pretty good idea of what your future financial life will look like.
I recommend you work with an independent financial advisor or a financial coach.
How will you choose to sort things out?
Now it’s time to consider how to sor things out. I will have in-depth discussions with you to see which of these processes OR a mix of these processes would suit you best.
One Solicitor: One Couple - this is where I help you both by giving you joint best interests’ advice. See the page about the solicitor neutral role for more details.
Mediation - the mediator helps you bring together all the information you need to make decisions about your parenting plan.
Hybrid Mediation - where solicitors are already involved or you are in mediation already. The solicitors are with you in mediation and this can be helpful as it cuts down on time and complications arising from a lack of contemporaneous advice.
Child Inclusive Mediation - a specially trained mediator talks and listens to your child(ren). Usually, but not always, the Child Inclusive Mediator will be separate to your mediator or hybrid mediator. They report back to you what the child (if the child consents) thinks.
Collaborative practice - where I and your ex’s especially trained lawyer work together to help you both sort things out; we will never work against each other or try to ‘win’; we will not be tactical. We our legal advice openly (known as waiving legal privilege). That way you know what each other’s cases are and can work out a way forward. We lawyers are contractually obliged not to go to court with you; this is a positive as it binds everyone to making it work.
Round table meetings - your lawyer and your ex’s lawyers meet ‘around the table’ or online together. We will want to sign a principled meeting agreement to make sure you can get the best out of it (rather than posturing and positioning).
Arbitration - you and your ex simply can’t make a decision on one or all issues. Then you need a decision maker. Sadly, most people at the moment would issue an application at court to ask a Judge to adjudicate. The court is not a good option. Instead use Arbitration to ask the Arbitrator to make the decision for you.
Arb-Med (Arbitration-Mediation) - this is a combination of Arbitration and Mediation. The order is important. First, you’d instruct an Arbitrator (see Arbitration) who would direct that you attend mediation. Most people sort everything out in mediation but if some things (or sometimes all things) aren’t resolved you can revert to an Arbitrator to make a decision for you.
Early Neutral Evaluation - sometimes, it’s very helpful to ask (or instruct) a neutral person to tell you (in person/Zoom or in writing) what might happen if the court was asked to make a decision on your situation (case). It can be creatively used to give an overview of what the law is in a particular area. The neutral person is usually a senior barrister, QC, solicitor or ex Judge. My role would be to prepare all the information to get the best results from the Early Neutral Evaluator.
Private FDR Judging - this is more formal than a straightforward Early Neutral Evaluation and will usually mimic the court procedure. The process allows you to either step away from the court process (just for this hearing) or you could have a Private FDR once you have all the financial information to hand in other processes (even traditional letter writing). The Private Judge will tell you what they would ‘order’ if they were Judging the case. Unless you agree otherwise, it’s not legally binding and any discussions cannot be used in any further court action or in Arbitration. [Although your offers to settle can be used in court later - so must be sensible and reasonable or risk costs orders against you].