When considering divorce, people tend to think that you either sort things out yourself around the kitchen table or involve solicitors and go to court. There is in fact a whole range of options in between. There are pros and cons of each option but they tend to increase in costs the further down the list you go with the increase in involvement of professionals.
1. Kitchen Table (negotiating together without help)
This is certainly one of the cheapest options and can be very quick. It works well where there are no children and there is going to be a ‘clean break’ i.e. the family’s assets will be split and there will be no ongoing maintenance.
Disadvantages: people may reach agreement without understanding their rights or the implications of what is agreed. If they do not file a consent order with the court they may find themselves in difficulties years down the line.
2. Assisted Joint Negotiation
A growing number of clients are deciding that they would like to sort matters out between themselves but with help from lawyers along the way. Many solicitors now offer an ‘unbundling’ service which allows for initial advice about legal rights and responsibilities and then allows the client to buy advice and assistance as they need it along the way rather than have the lawyers deal with everything. It can be very reassuring for a client to be working towards resolving matters amicably but with the benefit of legal advice and assistance as to the process.
Disadvantages: a solicitor cannot advise both parties and each individual would have to have their own solicitor. Expectations also need to be carefully managed as to exactly what the solicitor will be doing.
3. Mediation with a Neutral Professional
Mediation is usually less expensive and quicker than other options involving third parties. A skilled mediator facilitates discussion between the parties and assists them in reaching an outcome which will be approved by the court. It is a flexible process and can be used for all sorts of issues arising from family breakdown. All the negotiations are without prejudice which means that options can be explored without fear of them being used outside the mediation process. Where mediation is appropriate success rates are around 75%.
Disadvantages: mediators cannot provide partial advice although they will provide a lot of legal (and other) information. The couple will be encouraged to seek the advice of a solicitor throughout the process and certainly before an agreement is entered into. Mediation is not for everyone and is inappropriate in cases where, for example, one party does not feel safe negotiating with the other or where there is a power imbalance.
4. Collaborative Law
This combines the benefits of mediation with each person having their own individual lawyer with them to provide support. Clients sign an agreement to state that if the process breaks down they will each find new lawyers and this helps keep everyone focused on finding creative solutions. The success rate of collaborative cases is 85%.
Disadvantages: If the process does break down there is some duplication of costs as new solicitors will need to be instructed. A client’s expectations must also be carefully managed as the lawyer will be working towards finding solutions rather than necessarily fighting for the best possible outcome for their client.
5. Round Table Meetings
Once financial disclosure is complete the lawyers and clients can attend a meeting to try to reach agreement. These meetings encourages dialogue between the couple and mean matters are resolved more quickly than going through the court process.
Disadvantages: As the lawyers are not working on a collaborative basis they may take more of a positional rather than an interest based approach. Often the clients do not really participate (they may not be in the room where the actual negotiation is taking place) and so their ability to control the outcome is limited. These meetings can be very tiring for all involved and there is a real pressure to reach agreement before the end of the day. This can lead to things being forgotten or people giving up on what is really important to them.
6. Arm’s Length Negotiations
These are useful for clarity as everything is written down or where the client cannot bear the thought of direct negotiations with their former partner.
Disadvantages: It can be frustratingly slow and negotiations may go on for months. Correspondence can also increase hostility between the parties, particularly if solicitors use inflammatory language. There is limited opportunity for in-depth discussions or finding creative solutions.
The parties can agree an arbitrator who will decide their case after hearing submissions from both side’s lawyers. This is quicker than waiting for a court date, means you can choose your own judge and is private, which can be important for some clients, particularly those in the public eye. The arbitrator’s decision will be binding.
Disadvantages: the couple is handing over the decisions about the outcome to a third party rather than being involved in it themselves.
8. Private Financial Dispute Resolution (FDR)
The couple choose a legal professional (usually a barrister) to give them an indication of what a court would be likely to order at a final hearing. This is done with a view to helping the parties negotiate an agreement. As with arbitration, the couple can choose their ‘judge’ and it is quicker than waiting for a date for an FDR at court.
Disadvantages: while quicker than waiting for an FDR date from the court, the costs are around the same with the additional fee of the legal professional who will be hearing the case.
9. Litigation up to FDR
The parties will follow the court process and after around six to nine months will have a hearing where the judge indicates what sort of order he or she would be likely to make at a final hearing. It is often helpful for individuals to hear this from a judge and it helps focus the parties on settlement. The fact that everyone is in the court building together provides an opportunity for a round table meeting as at option 5 above.
Disadvantages: The process is costly as there is a large amount of lawyer involvement in the process of getting to the FDR and on the day itself. Clients often feel pressured to reach a settlement.
10. Litigation to final hearing
Sadly for a very small minority of clients litigation is the only possible option. These may have ex-partners who refuse to take advice or engage with the process and this is the only way to ensure they get a fair settlement.
Disadvantages: This is hugely costly, emotionally, financially and psychologically. It can be very damaging for children, even if the litigation was not about them and they were not directly involved in the process.
Each client and every divorce is unique and at Expatriate Law we aim to understand what is important to you, what your concerns and anxieties are, what you want to avoid and what your aspirations for your family’s future are. We can then consider the various options with you in detail so you can choose the means which will give you the protection and outcome you wish for.