Archive for April, 2010

10 tips for getting the best out of financial negotiations on divorce

If you are getting divorced it is inevitable that there will be negotiations about money. The discussions may be to do with dividing the family home, shares and investments, pensions, and other assets. The discussions will nearly always include how to divide the income. It is in your interests, and those of your partner, to do as well as you can in the negotiations. Thus it is clear to see that this can quickly lead to conflict between you – you cannot both do better than the other.

Negotiations are challenging for everyone. Here are some tips for making them easier and the outcome more acceptable to you and your partner:

1. Select a process for working things out which most accords with your values.
2. Find a lawyer who can work with you in that process.
3. Think carefully about how to engage your partner positively in the process.
4. Be honest about the disclosure of your financial position. If you are not honest and do not give “full and frank” disclosure any agreement that you reach in the negotiations is at risk of being reopened at a later date.
5. Be open – answer all reasonable questions asked of you about your financial positions as doing so helps create feelings of trust and tends to show that you have nothing to hide.
6. If you have made a mistake in your disclosure admit it. This way you can avoid your partner and their lawyer being suspicious of you and spending a lot of time and money trying to uncover the mistake.
7. Be co-operative. Usually it is easier and cheaper to accede to a reasonable request, for example for a valuation of a business, than to resist it.
8. Don’t try and rush decisions to get them over with. Decisions made in haste are frequently repented at leisure.
9. Be fair. If you are fair to your partner there is a much greater chance that they will be fair to you.
10. Think beyond the money to the impact on the family as a whole. If you have children be mindful of how they would wish to see their parents resolve things.

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Mediation about children – a true life story

Does this sound familiar?

Father says “she’s not the gatekeeper of my relationship with our sons. I am an equal parent and I have been just as involved as she has with the boys before I found the atmosphere intolerable and felt I had to leave the family home”.

She says “I will not be bullied by him. He has lost all touch with what’s going on with the boys and they have been very unsettled since he left. If he thinks he can march back into their lives where the children go from me to him like ping pong balls he must be kidding”.

Family background:
Nick and Sarah met at university and have known each other for many years. They have been married for seven years and have two sons, James 5 and Tom 2. Nick runs his own IT business and this used to be based in the family home. Sarah works in HR (four days a week) and they have an au pair.

When Nick lived in the family home childcare was a mix between the au pair, Nick and Sarah working flexible time (four days stretched over a five day week). Nick and Sarah have different memories in relation to their parenting roles with Sarah stating that she has initiated all the major decisions (childcare, nurseries, schools, toilet training, inoculations and health appointments) whilst Nick says that he has been there for the boys every day of their lives, that he has changed nappies, fed them in the night when Sarah returned to work, taught James to ride a bike and that they are very close to him.

Following their separation before Christmas Nick and Sarah were unable to negotiate contact. Sarah had wanted Nick to come round to the home and present a more amicable parental relationship to their sons while Nick had wanted nothing to do with Sarah and simply wanted to be able to have the boys for staying contact whenever he felt appropriate. Matters escalated with both solicitors unable to arrange contact culminating in Nick making an application for residence.

Mediation:
Five months on from their separation mediation offered the first opportunity for Sarah and Nick to be in the same room with one another in a peaceful environment. I asked Sarah to describe to me (in front of Nick) how the boys are and how they have changed over the last five months, (Sarah had explained to them that Nick is away working). Nick confirmed he did not feel able to see the boys at the family home and Sarah confirmed she was not opposed to contact in principle. Using the analogy of small steps we planned a number of periods of contact where Nick would take the boys out for six hours. I stressed to Nick and Sarah the importance of developing a friendly demeanour at handover where discussions would be specifically about their sons. Both Nick and Sarah understood the importance for their sons to witness this.

At our second meeting ten days later four periods of contact had taken place. Nick had found it difficult to talk to Sarah and Sarah had tried to be pleasant to Nick with little response. Nick had decided to move to Norwich to be near to where his new partner lives. His plan being to rent for six months and introduce the boys to her before moving in with her. She has a son the same age as James. Whilst Nick stated he ideally wanted the boys to live with him he recognised the importance of them remaining living in the family home and continuing to attend the same school and nursery. Nick said he had really wanted a 50/50 shared care arrangement but understood now with London and Norwich, logistically this was not viable.

Conclusion:
Nick agreed to adjourn his residence/contact application. An agreement was reached to try staying contact initially at Nick’s parents’ home (the home where the boys had stayed before). Mediation helped Nick and Sarah focus pragmatically on the question of “what’s the best it can be in the circumstances?” rather than a rights based debate about who is the best parent. Sarah and Nick are planning the boys first weekend in Norwich and Sarah has agreed to drive James and Tom up to Norwich so that she can see Nick’s home but perhaps more importantly the boys will know that their mother knows where they are and that they experience her approval of the plan. Nick and Sarah are intending to return to mediation in two months time to look at the longer term arrangements of weekend staying contact and shared holidays; and to discuss how Nick’s new partner might be introduced into the children’s lives. Mediation has offered them the opportunity to consider in a peaceful and child-centric environment how life goes on.

If you would like to try mediation then please contact us at info@flip.co.uk

The names and circumstances of the couple described above have been changed to preserve their anonymity.

A CLIENT’S GUIDE TO COLLABORATIVE DIVORCE

I was fortunate to be in the first wave of family lawyers in the UK to be trained in the art of collaborative family law. Pauline Tesler was our guide into mysteries of the paradigm shift.  I “got it” quite early on, certainly in my head but to “get it” body and soul” needs real live couples.  Over the next few years the number of couples with whom I could develop my collaborative skills steadily grew. They came from all different walks of life, some with children, some with none, some with a lot of money some with very little.  What they had in common though was a real desire to do the decent thing by each other. There were wounds of course but I believe that the process speeded the healing process.

I have had a number of different collaborative partners over the years and have learned so much from each of them. What I learned most though was the need for consistency in approach and preparation. The collaborative path runs much more smoothly when the lawyers and other professionals really collaborate and have given their clients the same information and expectations.

My experience of a few “hairy moments” in 4-way meetings and inheriting a collaborative case which had gone wrong provoked the idea of a practical manual for clients to provide them with the necessary consistency.   Resolution, the national association of family law specialists in England, (www.resolution.org.uk) carried out research into the success rate of the collaborative cases in England and Wales.  The result was a reassuring 85% but surely that could be improved by greater consistency and better preparation?

I set to and started sketching out the Guide. I wrote to all my former collaborative clients asking them to answer the following questions:

  • what would you have liked to know about the collaborative processes before you started which you only discovered as it was proceeding?
  • what tips would you give to anyone preparing for a 4-way meeting?
  • what were the challenges of the collaborative process for you?
  • what were the benefits?
  • what would you say (if anything) to encourage people thinking about trying the collaborative process?

 And, wonderfully, they replied with enthusiasm, willingness and honesty. I could not have asked for more.  The quotations that appear in the Guide are all from my clients and in their own words though their names and circumstances have been changed to preserve their anonymity.

Others helped too. I have been in the Resolution Collaborative training faculty for 3 years and my practice, Family Law in Partnership LLP, in London’s Covent Garden is home to James Pirrie (who brought collaborative practice to Europe and is a former IACP board member), Ruth Smallacombe and Dominic Raeside (the first two UK collaborative coaches – or family consultants as they are called over on this side of the Pond!).  My co-trainers and colleagues read the early drafts and improved it greatly. It was Ruth’s idea that I include the case studies, for example. A suggestion from the LinkedIn Collaborative Family Law group meant that I included a chapter on the emotional impact of separation and divorce.

I invited Neil Denny of Bath, England to write a section on collaborative conversations. Neil has written a great book – Conversational Riffs: creating meaning out of conflict – which has application in all areas where conflict might arise.

The Guide was born after a lightning gestation of under 4 months.

And it is my dream that this Guide can help couples worldwide achieve that Holy Grail which is the “good divorce”.   I want family lawyers to give their clients a copy – actually two copies so their spouses have one as well! – and I want family lawyers to have a copy for themselves.   The focus of the Guide is the clients. If it helps them then it helps us all become better collaborative practitioners and it helps bring the dream a step closer to reality.

You can buy the Guide online at www.flip.co.uk/about/downloads.asp

And you can buy Neil Denny’s book by emailing him at neil@coversationalriffs.com

This article in edited form first appeared in Collaborative Connections the IACP online newsletter in April 2010

How do English courts decide how to divide assets and income on divorce?

Some people see the English court system for dividing assets and income on divorce as enabling a bespoke outcome for any couple asking for assistance.   Just as many people see the English system as frustrating and bewildering.  The reason for these extreme reactions is because, unlike many other countries, the English system is discretionary and based on the all the facts of the particular case.

In particular the courts will look at:

  1. The welfare of any children under 18. This is the court’s paramount concern.
  2. The income and earning capacity of the couple.
  3. Their assets (e.g. houses, savings, investments, businesses, pensions etc).
  4. Their needs and obligations.
  5. The standard of living during the marriage.
  6. The ages of the couple and the length of marriage
  7. Any physical and mental disability.
  8. The contributions of each of the couple to the welfare of the family, including any contribution any contribution by looking after the home or caring for the family;
  9. The conduct of the parties if, in the interest of the court, it would be inequitable to disregard it.
  10. Whether any pension rights will be lost by either of the couple as a result of the divorce.

Over the years the courts have, through reported cases, given some guidance about how to apply these various factors in particular cases. As a result some principles have emerged which help lawyers advise their clients.  The most important of these are fairness and needs.

Needs:  Needs is the factor that has the greatest impacts on outcome – so understanding it is crucial.  Probably the most important thing for the judge in making his or her decision is to have clarity that the financial arrangement will enable the separating parts of the family to meet their respective needs.  Children’s needs are prioritised.

What the court will want to see is an arrangement:

-           where possible, there is appropriate housing for each of the parts of the family, offering at least one secure home for the children – and preferably 2, one with each parent

-           where possible, there is sufficient money to pay for the outgoings of each of those two households

-           where possible, there is some provision being made for the later retirement of the parties.

 Fairness: The courts have insisted that the overwhelming focus is upon achieving fairness.  However, fairness is a very broad concept and means something particular to family lawyers and courts.  For example, conduct will almost never enter into the reckoning. The value of contributions tends to diminish the longer the marriage endures. People often think that equality and fairness are the same. Often they are but not always – for example, one person may have inherited the bulk of the wealth that is available or one person may have needs that are more pressing than the other person’s.

Although reported cases are a help, no two cases are the same and so it is very difficult for lawyers to advise with complete accuracy on the likely outcome if your case goes to court. At best your lawyers will be able to advise on the range of likely outcomes.   For this reason many people have looked to different methods for resolving their financial issues on divorce such as mediation or collaboration where what the court would do is less determinative of the outcome.

If you need advice from a lawyer about these issues then you can find a specialist family lawyer in your area at www.resoluiton.org.uk

This is a highly specialised area of law and this blog provides only the briefest detail of the principles involved. Please take legal advice about how the law may apply to your particular circumstances.

For more information contact info@flip.co.uk