What do you need a divorce lawyer for?
Not everyone who goes to see a divorce lawyer wants a divorce. Often, seeing a divorce lawyer is your first action when you know something in your marriage needs to change. It doesn’t always mean that your relationship is over. A good divorce lawyer will help you explore your thoughts and recommend other sources of support if appropriate. In What do you need a divorce lawyer for? we take a look at the ways in which a divorce lawyer can add value to your divorce and those things that are within your remit, not theirs.
A divorce lawyer can’t tell you whether your marriage is over. That’s for you to decide. If you’ve read my book How to be a Lady Who Leaves, The Ultimate Guide to Getting Divorce Ready, you’ll know that I dedicate the whole first section to helping you make the decision. It’s important. It takes time and consideration. And it’s up to you.
First, let’s look at how you shouldn’t use a divorce lawyer.
Your divorce lawyer is not your therapist
Let me repeat: your divorce lawyer is not your therapist.
If you’ve followed my blog for a while, you might be thinking, “OMG Emma! You’re not saying that again are you?!”
Yes. I am. And I make no apology.
However much you know it, it’s likely you still fall into the trap. You pick up the phone or draft an email to tell your solicitor about every little thing your ex has said, done or not said and done. Now don’t get me wrong, there are times when this is appropriate.
If you are trying to establish a pattern of behaviour to support an injunctive application (think non-molestation or occupation order), that’s the right thing to do – it’s evidence. If that’s not on the agenda however, it’s a hugely expensive therapy session. With someone who’s not a professional therapist.
So stop. Give the legal stuff to the lawyer and take the emotional processing and practical decision-making (which is absolutely important and valid) elsewhere.
Your divorce lawyer can’t set your objectives for you
One of the reasons I stress the importance of having a divorce plan is because your lawyer is there primarily to support you in achieving your objectives (or supporting you to understand why they are not achievable).
It is not the role of your divorce lawyer to create those objectives for you. They will present options and give you the time and space required to make decisions. You might think they are well placed to tell you what to do, as they know divorce better than you. But this is your life, your future and at all times responsibility lies with you. Yes, the responsibility lies with you.
If you lose sight of your wider objectives, a good family lawyer will pull you back and keep you focused. They can only do this however if you’ve given them good instructions. So make yourself a divorce plan!
Now let’s look at scenarios where a divorce lawyer can help – and what to do if you don’t have the funds for one.
If you have the resources, you can ask your family lawyer to petition for divorce on your behalf. You can request they negotiate a financial settlement or issue financial remedy proceedings for you. You can ask them to file for a Child Arrangements Order, organise mediation for you, refer you to a colleague to redraft your Will and deal with any conveyancing.
Since the removal of legal aid for the majority family law cases in 2013, many divorcing individuals find themselves as Litigants in Person, or self-representing. This may be a conscious choice to save limited funds or forced out of necessity. It’s less than ideal.
If you do not have the resources or desire to hire a lawyer to do these things for you, you can do many yourself, then use a lawyer to draft your Consent Order and Will.
The biggest mistake you can make is leaving the financial remedy part of your divorce because you think that without a lawyer, you can’t apply. You can and you really should. Will it be scary? Yes! Will it be easy? No. Will it be worth it? Absolutely. Many women have done it, without legal representation. It’s about standing up for what you need and deserve.
Your divorce lawyer can advise and support you to negotiate arrangements for your children. From maintenance payments to parenting time, if you are struggling to communicate directly with your ex because you lack confidence or he’s emotionally closed-off, your lawyer can deal with them in a less emotive way.
Do you have to have legal arrangements for your children? No.
Unlike your financial situation, when it comes to children, the court works from the ‘No Order Principle’. The No Order principle works on the basis that no formal orders for the children are generally better for them. In other words, the two of you are the best decision-makers about your own children’s arrangements and you should be free to be as flexible as possible with those. Therefore, the court will only make a formal arrangement for your children if it’s in their best interests to do so taking into account your family situation.
specific issues or prohibited steps
If there is a pattern of your ex not sticking to arrangements, or there are special circumstances, it may be that you need to pursue a formal order. The support of a family lawyer will be particularly useful in situations where you are considering change of name for the child on your divorce, moving school, country or home town (these are known as specific issues) or you want to prevent your ex from behaving in a certain way or doing a certain thing in relation to the children (these are known as prohibited steps).
The family home is usually one of the biggest family assets (aside from pensions). You may be lucky enough to have sufficient equity in your property or properties to ensure that both of you are re-housed without too much difficulty. For many people, however, this is not their reality. Tough decisions need to be made about the family home and who, if anyone, should remain living there.
You will particularly benefit from the support of a lawyer if you want to get your ex out of the marital home because of abuse. Legal Aid is available in certain circumstances so if you feel that you would qualify, seek out legal advice to support you.
It is perfectly possible to resolve your finances between the two of you and with the support of a mediator. But if you can afford it, using a lawyer is beneficial to ensure that you are getting advice that’s specific to you. This is especially important if one or both of you run businesses, have complex financial arrangements or are the beneficiaries of trust money.
Mediation is a good starting point to begin the disclosure process and initial conversations about money – although not if you’re experiencing domestic abuse. Mediation is not a suitable venue for financial discussions if your ex exerts financial control or pressure on you, is emotionally manipulative or controlling or exerts physical power over you. It is not a good idea to sit together even in a public space to discuss money if your ex exhibits these behaviours.
Domestic abuse is defined as ‘any incident or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other’.
This definition is wide and any application must be supported with evidence to qualify for legal aid. Even if you have this evidence, your case will be subject to a merits and means test.
Every solicitor is bound to discuss with you the merits of your legal aid claim even if they themselves do not offer such a service. If you feel that your case may be eligible for legal aid, seek legal advice immediately.
Examples of sufficient evidence include:
- Your ex has been arrested for or convicted of a domestic violence offence
- At any time in the past your ex has accepted a caution or bind over in relation to you
- Your ex has been subject to a domestic violence bind over
- There are ongoing criminal proceedings relating to a domestic violence offence
- You have or have had a protective injunction in relation to this person
- There are undertakings in respect of domestic abuse and no cross-undertakings
- You have a letter from a health professional confirming you were examined for abuse in the past
- You have previously been or are subject to a MARAC
- Social Services have been involved with you because of domestic abuse
- You have a letter confirming you have stayed at a refuge for more than 24 hours in the past.
- The family court has made findings of fact in relation to domestic abuse at any time in the past
- You are receiving support from domestic abuse support services
There is now no longer any time limit in which this evidence must relate to. Therefore, if you have previously accessed these services in the distant past, you can still utilise this evidence.
There are several different ways that legal aid may help you depending on the type of case you have. You may or may not have to pay any funding awarded back at the conclusion of the case. Seek advice if you feel this could be you.
High conflict divorce
High conflict divorce, whilst technically covered under the term ‘domestic abuse’, is worthy of a section on its own.
Depending on the nature of the high conflict situation and the personality of the perpetrator you may not have sufficient evidence to qualify for legal aid. You may therefore be faced with having to pay for representation with limited funds.
Use these funds wisely and do as much of the divorce process as you can yourself. Find a lawyer who understands high conflict personalities and how their own behaviour as a lawyer can inadvertently increase conflict for you. Be clear about your needs and your situation. Educate your lawyer if necessary. Ask them about the cases they’ve dealt with and how they handled them. Do not be afraid to advocate for yourself and shop around to find the right lawyer for you.
Working with a divorce coach
Whether or not you use a lawyer for every step of your divorce proceedings, you may find a divorce coach is helpful (and financially savvy). While divorce lawyers shouldn’t be your first port of call for emotional support, divorce coaches absolutely can provide confidential, impartial support as you make decisions. Legally qualified divorce coaches (like me) can also help you really understand the legal process and the options you have available to you. We can help you plan, instruct solicitors and discuss the advice you receive in a relaxed, calm jargon-free way. So that you can respond to your solicitor in a timely manner with clarity and confidence – and save hundreds, if not thousands, in legal fees.
Get Divorce Ready
In April I’m running the Get Divorce Ready Group programme again. It runs online, so you participate from the comfort of your own home. All calls are scheduled for the evenings, after the children are in bed. Everything is recorded so if you miss a call you can catch up with all the information and support.
It’s all about getting in the zone, understanding the process and creating a plan. It might be that you petition for divorce in real time as you move through the programme – many women have done this and found it a much less stressful way to get your divorce underway than going it alone.
As well as my support, you get the support of women like you. Yes, everyone is unique, but how refreshing is it to talk with women who really get it – they know what you’re experiencing and where you’re coming from, because they’re in that place too.
For the first time you will also get three months free access to the Absolute Academy (usually £147/month) . This gives you access to the fantastically engaged and supportive community there, as well as the extensive training portal and the seven days a week support I provide in that group.
If you’re serious about divorce in 2020 this is exactly what you need. You can sign up to the waitlist here.
Emma Heptonstall, the Divorce Alchemist is author of the Amazon best selling book How to be a Lady Who Leaves, the Ultimate Guide to Getting Divorce Ready. A former lawyer, Emma is a family mediator and founder of Get Divorce Ready the online self-study and group programmes. Emma has been featured on BBC Radio, The Telegraph, the iPaper and in Marie Claire Magazine. To find out more visit www.emmaheptonstall.com