Saturday 23 September 2017

How to take the financial pain out of separation

Twelve tips from a family law solicitor. By John Hearne

Celebrities do messy divorce like no one else. When his Spanish-born wife Mati initiated divorce proceedings against celebrity chef Marco Pierre White, the whole thing quickly degenerated into an unseemly mess.

She texted her entire contact list with the news that he had left her for someone else. The family instantly split in two; his two sons went to live with him, their daughter stayed with her.

The couple spent around £1.25m each on legal costs. Mati had to sell her engagement ring to help pay costs. In the end, they got back together.

Most of us won't have a £50m restaurant empire up for grabs, but that doesn't mean that divorces won't get messy. Far from it. Family law solicitor Justin Spain says that if you are facing into separation or divorce, prepare yourself for one of the most stressful periods of your life.

"Family law is not like normal litigation where someone wins and someone loses." He says. "With family law, it's lose/lose. The best you can come up with is a kind of a workable solution."

In most countries, separating couples go straight to divorce. In Ireland, because separating partners must have lived apart for four years before divorce proceedings can begin, the process begins with separation.

Separating partners can agree to a deed of separation, but if agreement can't be found, one party issues legal proceedings in court. This is when things can get messy.

"In a lot of cases," says Spain, "there's so much animosity between the parties that it's just not possible to agree to a deed of separation."

If the situation has degenerated to this level, Spain advises a two-pronged approach.

"The family mediation service run by the Government is a good service and it's free."

The big downside of litigation is of course the cost.

"I have had cases where you have an average middle-class family and the only asset is the family home, and there may not be much equity in it. Three or four days are spent in court fighting about it and the legal fees could be over 20 grand each."

The lesson, says Spain, is don't run down the family pot in a rush to court.

"If you approach the whole separation issue openly and in a business-like way, it can be done relatively easily . . . Or you can litigate and throw a lot of money at it, and you're going to end up with often a similar result. Litigation should be a very last resort."

Justin Spain's 12 Tips For Staying Sane in a Separation

It will be difficult

Even if it's your decision to end the relationship, things will probably get worse before they get better. You'll have to make significant decisions that will affect your financial future and your relationship with your children. Remember too that a separation or divorce will take longer to finalise than you think, particularly if communication has broken down.

Be careful about moving out of the family home

Removing yourself from the home may provide a respite from hostilities, but it may be the wrong move strategically. If moving out resolves the situation for one partner, it will remove their motivation for finalising the separation, and leave the other in limbo.

If you have children, try to agree arrangements outside the legal process

You and your spouse will have to work together as parents long after the legal process has ended. Try to resolve issues with a mediator or therapist rather than fighting about it through solicitors.

Try to agree who gets what without using solicitors

Don't let things get out of perspective. It's usually cheaper to replace the item you're arguing over than to use solicitors to fight about it.

Make sure you get early legal advice, particularly if your partner is from outside Ireland

If one of you qualifies as resident in another country, it's possible that proceedings can be issued outside Ireland. If this is a possibility, it's essential that you seek legal advice as soon as possible to make sure proceedings are dealt with in Ireland.

You may not be able to take the children out of the country

Children of married parents can't be taken out of the country without the permission of both parents or the consent of a court. If you take the children to another country, you may be guilty of a criminal offence.

The court won't care if your partner was unfaithful

In the vast majority of cases, the court will not take the misconduct of one party into account when deciding how to divide things up. Take advice before wasting money on private investigators.

Money spent on lawyers means less for the family

Fully contested judicial proceedings may have serious cost implications for both of you, because usually, each party looks after its own costs. Approaching matters in a business-like manner from the start will mean you'll spend less on legal costs.

Do your research before deciding on a solicitor

Your relationship with your solicitor is very important, so take your time before deciding who to retain. Don't make your decision on the basis of how much he or she charges per hour; an experienced solicitor who works swiftly can be more cost-effective than one who charges a lower rate but who may not have the same experience.

Consider counselling

Your solicitor should always be supportive, but don't rely on him for everything. You may need the help of a counsellor or a therapist to deal with the emotional fallout.

Be open with your solicitor

Your solicitor will be able to deal with issues if he or she is aware of all the facts. However, if skeletons fall out of the closet when the case is in court, and when it's too late for your advisers to deal with them, it may have negative implications for your case.

Life goes on

Finally, try to maintain a sense of perspective and your sense of humour. Life goes on after separation or divorce. Things will get better once the process has been finalised.

Irish Independent

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