Divorce & Separation: The Process Options

Key features:

• Court is the default option – i.e. the process that is used in the absence of an agreement to make use of an alternative.
• An application is made to the court which has the effect of timetabling the steps in the case, fixing a settlement meeting and ultimately providing a judge to decide the outcome of the issues you raise which is binding on both of you.

You will use this where:

• You can’t agree on an alternative.
• You want to create binding timetabling to progress the case.
• There is an emergency and you want the court to make urgent orders, for example for protection for you or for any children.
• You want help with interim provision or funding for lawyers that you think the court will give but you can’t agree it.
• You think the authority of the court process will help to ensure there is disclosure given that will not otherwise be volunteered.
• You think that an externally imposed solution is going to be needed (i.e. because one can’t be agreed) and you can’t agree on arbitration.
• Your situation is complex and requires the input of barristers. (Court is their usually preferred process in these situations).
• Your spouse/partner insists on it (because you then have no choice).

Potential problems that will need management:

• Our overburdened courts are likely to mean delay. They may well also mean insufficient allocation of time to deal with the case and a risk of your court listing being bumped at the last minute.
• Detailed procedural requirements mean demands on you if you run the case yourself and costs if you get a legal team to do it for you.
• There is a risk of increased animosity – for example, it may lead to harder co-parenting.
• A decision will be imposed and your best ideas may not be central to the solution.
• There is a risk that if you reach the stage of a final hearing, personal details may be put into the public domain by the media.

Timescales:

• More than a year for a case about parenting issues, and nearer two years for a case relating to finances.

Cost (£-£££):

£££

Learn more about going to court (litigation) here.

Key features:

• The family mediator does not give advice about the law but facilitates the constructive exploration of solutions between you both. Legal advice is usually taken by you independently and outside the process though there are many alternatives such as ‘the Certainty Project, Hybrid Mediation, Integrative Mediation that would deal with matters other ways.

You will use this where:

• You both have confidence in the family mediator.
• What you really want is a framework and guidance for your discussions rather than law-guidance as to the solutions.
• You can have a fair negotiation and work out solutions together that work well for your family, rather than necessarily fitting within a standard legal template (though the mediator may do that too).
• You each have skills to negotiate fairly, and reasonable knowledge of the subject matter of the negotiations.
• You are looking for a process where you can hear your spouse’s/partner’s ideas and they can hear yours and you can work on finding solutions together.

Potential problems that will need management:

• For some the emotions of separation are just too raw to be working on these incredibly important issues face to face. Shuttle mediation is a possible alternative but then the co-creation of solutions can be impacted.
• For some the gap between working on solutions (in the mediation room) and taking advice on those discussions (legal advice separately) is a problem.
• Client control for some can mean drift, delay and lack of control for others – ultimately your sanction is limited to terminating the process: it is therefore not a solution for all situations.

Timescales:

• Determined by you both but typically 2-3 months if negotiations go well. You may want follow up meetings to check on progress with implementation which therefore means that the process runs on longer.

Cost (£-£££):

• £

Learn more about mediation here.

Key features:

• You and your partner jointly appoint a specialist family arbitrator to decide the issues between you.
• It is a voluntary process (no one can be compelled to adopt it) but once it has started, you can only end it by agreement and otherwise it will deliver an outcome that will bind you both.
• You can self represent but generally will want to manage the process with your legal team.

You will use this where:

• You are looking for a way to decide discrete issues within other processes (for example to decide a separate issue within court proceedings).
• You have reached an impasse in negotiations and it is a question of either court or arbitration.
• You are both attracted by its key advantages, which include:

• • A tailor made process, not affected by court backlogs.
  • A judge who may have particular expertise in any unusual features but in particular who will have proper time to get to understand your situation away from the rush that is usual at court.
  • Continuity with your chosen “judge” – someone who will have time to properly consider the nuances of your case.
  • A less stressful and lower cost process than court.
  • Privacy (there is no chance of media attendance at the final hearing).

Problems that will need management:

• The costs charged by the arbitrator – however, that outlay is usually dwarfed by the other savings as against the court process.
• The arbitrator applies the law rather than facilitates dialogue so your authorship of your outcomes is, as with the court, restricted when compared, for example, to mediated solutions.

Timescales

• Determined by you but if speed is sought, 3-8 months is realistic.

Cost (£-£££):

• ££

Learn more about arbitration here.

Key Features

• Invented in America in the ’90s and imported by FLiP in the noughties, this is a particular form of lawyer-led negotiation, where the court can’t be used.

• You each have your own collaboratively qualified lawyer.
• Routine progress will be assisted by appropriate other experts such as financial planners.
• The presence of your own lawyers means that you are able to work out your own solutions in the shade of contemporaneous legal guidance.

• Successful cases are a confluence between help and guidance from the law and creative authorship by well-supported participants.

You will use this where:

• You are seeking solutions with the assistance of good support to be able to think creatively about your options.
• You are confident that each of you, where properly supported, will ultimately do your best for the family.
• You want to come out of the process with a positive working relationship with your co-parent or former spouse/partner.
• You want to understand what is going on and have a voice in shaping it rather than being handed a solution at the end of the day and having to make it work.

Potential problems that will need management:

• It requires a good working relationship between the lawyers – ideally they will be able to refer to previous cases that they have managed successfully together.
• Where trust is low between you or there is an imbalance of power that can’t be managed, the outcome risks being affected. For example, it will not be suitable for cases in which you are not able to be in the same room.
• The flipside of its being led by you is the risk of drift. The professionals will need to be committed to efficiency and progress from the start.
• If ultimately you reach impasse and need court or arbitration then generally your advisers will need to hand over to new advisers who will pick up where your collaborative lawyers left off and take the case to court.

Timescales:

• Determined by you both and the complexity of the issues but typically meetings will run over 3-9 months.

Cost (£-£££):

• ££

Learn more about the collaborative approach here.

Key Features:

• Divorce consultancy/relationship therapy can be continued alongside any of the above processes (or stand-alone without them).
• It addresses the flipside [to the nuts and bolts issues of safety, finances and parenting issues] but complements them by looking more deeply at motivations and change.

So it might be the place that:

• you work out the way back into the relationship, making it more fulfilling and lifelong
• you deal with the devastation/guilt/anxiety etc of what has happened and start to feel fit to address the agenda of practical ramifications
• you might work on how the relationship between you ticks so that you are able to change how it functions and thus be more successful in the negotiations or post-separation parenting ahead
• you might use it to gain perspectives and insights on what your children will be going through and how best you can protect them and meet their needs
• It may be simply about unloading your frustrations with those nuts and bolts processes and thus start to create strategies to be more effective within the process that you are stuck having to use

It is the job of the counsellor to help you uncover the blocks and concerns and then help you to develop strategies forward.

Divorce consultancy and relationship therapy can be joint or sole, short or long-term. Most usually at FLiP it is on-line, short-term, practical and goal focused. It is also integrated, in that you will consider ways of using your conclusions within the other processes so that they can progress for the best, but there are many options.

Above all, it is the process that you will not see how useful it could have been without trying it.

You will use this where:

• You are seeking to protect yourselves from the costs and other disadvantages of court
• You see the advantages of building solutions on understanding, findings ways forward that might work well for all of you
• You are seeking to find the best solutions for your children (of whatever age from babies to adults)
• What has happened to you in the relationship is much on your mind and/or you are anxious about what the future holds.

Cost (£-£££):

• £

Learn more about divorce consultancy and relationship therapy here.

Key features:

• A single law-professional, trained for this work is appointed to give you and your spouse/partner advice and guidance for you to work out your solution.

You will use this where:

• You each have a pretty good grasp of what is going on.
• What you need to be able to resolve between you feels pretty clear.
• You have a good working and negotiating relationship with your spouse/partner.
• You are looking more towards the law (than your own ideas) for finding the solution to your situation.
• You think that having one lawyer increases the chance of building a harmonious negotiation.

You can’t use it where there is a significant conflict, imbalance of power, questions around capacity where unlawful actions or activities have taken place or where you are not willing to be led by the legal guidance as to the outcome.

Potential problems that will need management:

• Most people end up needing their own separate advice and guidance. This process dispenses with this element and so requires really careful intake before it can start. This is designed to avoid reaching the conclusion that ultimately it can’t deliver the solutions needed.
• It is not going to work unless you – appropriately – each have considerable confidence in the professional you appoint.

Timescales:

• Determined by you both and the complexity of issues but it  can be very quick.

Cost (£-£££):

• £ upwards

Learn more about FLiP Together here.

Key features:

• A process which brings together three different components: lawyer, divorce consultant and arbitrator, potentially “under one roof” to address the legal, relationship and practical issues that arise at separation

You will use this where:

• You are looking for an alternative to the collaborative process option.
• You are both looking for the chance to shape the outcome, which may be better for both of you than the court’s approach.
• You are seeking to resolve all aspects of your divorce or separation.

Potential problems that will need management:

• Where trust is low between you, or where there is an imbalance of power that can’t be managed, the outcome risks being affected. For example, it will not be suitable for cases in which you are not able to be in the same room.
• The flipside of its being led by the you is the risk of drift. The professionals need to be committed to efficiency and progress from the start.

Timescales:

• Determined by you both and the complexity of the issues.

Cost (£-£££):

• The cost for the standard FLiP Settle package is £7,500 per person (ie. £15,000 per couple) (to include VAT). Complex situations will involve a higher cost.

Learn more about FLiP Settle here.