The Questions People Quietly Ask Before They Contact a Divorce Lawyer

The Questions People Quietly Ask Before They Contact a Divorce Lawyer

I. Introduction: The Daunting Prospect of Divorce

Divorce can obviously be a daunting prospect for anyone contemplating it, filling them with trepidation, or even fear. The way to address this is, of course, to seek advice from an expert divorce lawyer.

But even the thought of contacting a divorce lawyer can be intimidating: a person might take months thinking about divorce, but the thought of contacting a divorce lawyer feels like the first irreversible step.

Whilst it is natural to think this, a first meeting with a divorce lawyer can be entirely non-committal, involving no more than information gathering, and advice. No papers need be signed, and no steps need be taken in the divorce process.

Instead, the meeting can be used to answer many of the myriad questions that inevitably fill the mind of someone contemplating divorce.

There is therefore no reason not to seek face-to-face advice from an expert divorce lawyer, but in case you are still undecided we will endeavour in this article to answer some of the most common questions.

There is, of course, no substitute for expert advice, tailored to your particular circumstances. We obviously can’t give tailored advice in an article such as this, but we will try to provide some general answers.

II. Is Divorce the Right Step, Or Should I Try Relationship Counselling First?

• The Lawyer’s Role: Obviously, it is not the job of a divorce lawyer to tell you whether or not you should go ahead with a divorce. A good divorce lawyer will not therefore push for divorce, and will support relationship counselling or mediation, if they believe that that is appropriate. Lawyers are there to give legal clarity, not moral guidance.
• The Legal Timetable: The law in England and Wales is actually designed to ensure that people are certain that they want a divorce, before they decide to proceed. For example, you must have been married for at least one year before you can apply for a divorce. This one-year bar reflects the seriousness of the marriage commitment, and prevents people from seeking a quick ‘impulse divorce’.
• The 20-Week Reflection Period: And even if you have commenced divorce proceedings, the law has a built-in twenty-week ‘period for reflection’, whereby twenty weeks must elapse after the divorce application, before the applicant can apply for the divorce to proceed. This period is designed in part to give couples time to reflect, and ensure that they do indeed wish to go ahead with the divorce.
• Relationship Counselling: If you decide that you would like to try relationship counselling before going ahead with a divorce then you should get in touch with a relationship counselling service, often referred to as ‘marriage guidance’. There are various organisations that provide relationship counselling. Perhaps the best known is Relate, a charity that provides counselling services across England and Wales.
• Alternatives to Divorce: It should also be borne in mind that there are other legal processes that you could consider, if you are not ready for, or don’t want, a divorce. You could, for example, enter into a Separation Agreement with your spouse. The agreement would state that you have agreed to separate, and set out agreed arrangements for finances and any children. Or you could apply for a Judicial Separation. This is a process similar to a divorce, but that allows you to sort out arrangements for finances and children, in a similar way to what you would do if you divorced. Judicial Separation is often used by those with a religious objection to divorce.

III. When Should I Contact a Divorce Lawyer?

• The Simple Answer: The simple answer is that you should contact a lawyer as soon as you start to seriously consider the possibility of a divorce, even if you are not yet certain that the marriage has broken down irretrievably.
• Don’t Delay: It is important to seek divorce advice as soon as possible. Not only will this mean that you will be able to take informed decisions, it can prevent you from making mistakes, such as moving out of the matrimonial home unnecessarily, shutting down accounts, or communicating in ways that harm your position. A lawyer can help you strategically plan your exit.
• No Commitment: As we have already indicated, contacting a divorce lawyer is a fact-finding mission, not an instruction to start proceedings. There is therefore no reason to delay seeking advice.

IV. Will I Be Able to Afford to Live After the Divorce?

For many people contemplating divorce the biggest fear is the possible financial consequences. In simple terms, will you still be able to afford to live after the divorce? Obviously, this is a huge topic, and we could not possibly cover it in detail in an article such as this. However, there are a couple of things to say that might help put your mind at rest:

• Breadwinners and Homemakers are treated the Same: In many marriages, one party is the only, or the primary, breadwinner, and the other party is the ‘homemaker’, looking after the home and being the primary carer for any dependent children. Quite often the homemaker might feel that they are at a serious disadvantage, and are likely to end up considerably worse off after the divorce. But not being the breadwinner should not of itself be a disadvantage, as the law specifically treats the contributions of the breadwinner and the homemaker as equal.
• The Sharing Principle: When considering a financial/property settlement on divorce the law takes into account all of the circumstances of the case. However, as a general rule the courts will divide the matrimonial assets equally between the husband and the wife, unless there is a good reason to divide them in unequal shares. This is known as the ‘sharing principle’.
• The Priority of Needs: The most common reason for departing from the sharing principle is that one party’s financial needs are greater than the needs of the other party. ‘Needs’ include income needs and housing needs, for example if any dependent children are to live primarily with one parent, then their housing needs are obviously likely to be greater than the housing needs of the other party.

V. How Will the Courts Decide Who the Children Live With?

Obviously, the parents should try to agree arrangements for any dependent children after the divorce, including with whom they should live and, if with just one parent, what time they should spend with the other parent. But if the parents cannot agree arrangements between themselves then it may be necessary to ask the court to sort them out. When considering any question relating to children the court will be guided by one thing: The Welfare of the Child.

• The Paramountcy Principle: The law states that when a court determines any question with respect to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration. This is known as the ‘paramountcy principle’.
• The Welfare Checklist: In deciding what is best for the welfare of the child the court is obliged to take into account a number of matters, set out in what is known as the ‘welfare checklist’. These matters include: the ascertainable wishes and feelings of the child concerned, considered in the light of the child’s age and understanding; the likely effect on the child of any change in his or her circumstances; any harm which the child has suffered or is at risk of suffering; and the capability of each of the parents of meeting the child’s needs.

VI. Will I Have to Go to Court?

Most people would find the prospect of having to go to court extremely scary, and would want to avoid going to court if at all possible.

The good news is that most people going through divorce never have to set foot in a court. To give a little more detail, we have to consider separately the divorce process itself, and sorting out finances and arrangements for children.

• The Divorce Process: In almost all cases, the divorce process is purely administrative, usually taking place entirely online. It should be noted in particular that it is no longer possible to defend a divorce, and there is therefore no reason to have to go to court to argue that you are entitled to a divorce – the mere fact that you state that the marriage has irretrievably broken down is enough to entitle you to a divorce.
• Finances and Children: In the vast majority of cases, issues relating to finances and arrangements for children are resolved between the parties by agreement, whether through negotiation or by some other means, such as Family Mediation. If they are resolved by agreement then it should not be necessary to attend court (although a court order will be needed to set out any agreed financial settlement – this can normally be obtained without having to attend court). Only in those relatively rare cases where finances or arrangements for children cannot be agreed will it be necessary to attend court.

VII. How Much Will the Divorce Cost?

It is well known that any kind of legal proceedings can be very expensive. It is therefore quite natural that the cost can be a great concern for anyone contemplating divorce. It would be impossible to give a figure for the cost of your divorce, as this will depend upon a number of factors, but the following may be helpful:

• Court Fees: There are court fees involved in the divorce process. Exactly what these will be will depend upon what is in issue, but the current fee for making a divorce application is £612. You may not have to pay a fee, or you may get some money off, if you have little or no savings and investments, receive certain benefits, or have a low income.
• The Issues: The biggest factor in how much the divorce will cost is the issues that you want the court to sort out, and how complex those issues are. Contested court proceedings, whether relating to finances or arrangements for children, can be very expensive, involving solicitors’ fees, barristers’ fees, and other expenses. Where a case with no contested issues may cost at most a few thousand pounds, cases with complex contested issues can cost tens of thousands of pounds, sometimes even more than that.
• Keeping Costs Down: The key to keeping costs down is quite simple: Agree everything you reasonably can. This means having reasonable expectations, and taking a reasonable approach to negotiations. If you cannot agree matters by negotiation, whether directly with the other party or through solicitors, then consider ways of resolving the matter out of court, for example via Family Mediation, Resolution Together, or Collaborative Family Law. And if you are not able to agree matters, going to Arbitration can be a lot cheaper than going to court.

VIII. Conclusion: A Recap, and Next Steps

As stated at the beginning of this article, the above answers are general only, not tailored to your particular circumstances.

You should therefore speak to a divorce lawyer, to get tailored advice, and to get answers to any other questions that you may have. Getting such advice will go a long way to managing the daunting prospect of divorce.

And remember, speaking to a divorce lawyer does not mean committing yourself to taking any further steps in the divorce process. You are always in control, and with proper advice you will fully understand your options.

At Walker Family Law we have a team of specialist family lawyers, who can provide you with the tailored expert advice that you need. To speak with one of our lawyers, simply complete and submit the form, on this page.