How Soon is Too Soon to Divorce

It’s a tricky one. The two year separation has fallen out of favour. Largely because many separating couples emotionally find it difficult to remain legally bound to a person of their emotional past when they are concentrating on building a future in real and personal terms. But also, because many people find it impossible to leave financial matters unresolved for two years or are not willing to have their agreements potentially reassessed at that point.
The upshot is that, in my experience, the unreasonable behaviour divorce is king, offering the only real option for couples who want to formalise their situation immediately. Now forcing a one eyed post mortem of a failed relationship is something that can test the most amicable of couples who see the unreasonable behaviour petition as a means to an end. For others, it is emotionally catastrophic.
Good practice dictates that lawyers should try to agree the content of petitions and keep them as mild as possible. Having found Judges increasingly willing to reject shorter and milder petitions (with resulting delay and cost for couples) I find it hard now not to keep more in than not. (Personally and professionally I find that unsatisfactory but that is another blog). In addition, I have found that people are willing to use the attempt to agree a draft petition in advance prior to issuing as an opportunity to ‘get in first’ with one of their own. The result is an unhappy client and a lawyer with egg on his or her face (albeit for the right reasons). So people often insist on issuing divorce proceedings without notice (or give notice once the papers have been sent to the Court) to avoid cost and delay. This is, to say the least, usually an unpleasant shock for the other spouse. But is it counter productive?
I saw an interesting comment recently which says that people do not want conflicts or to pay lawyer’s fees. I have to say that is not always true. And it depends on how lawyers and clients define conflict.  Often, I speak with someone who, where I see a conflict to be resolved, sees a marriage that needs to be saved. Conflict resolution is difficult if you do not agree on the conflict. Advice is not sought on a swift and cost effective solution. If anything the desire is to prolong the ‘conflict’ for as long as possible. It is not unusual for one spouse to be determined the marriage should be dissolved immediately whereas the other feels that this should be resisted at all costs to provide a chance for reconciliation.
What does the lawyer advise? Be realistic, save money and cooperate with the divorce. That would be a patronising and cold dismissal of a sincere and genuine desire to keep a young family together. It would mean overstepping the mark quite considerably in my opinion. But it is also quite improper to encourage a defended divorce where considerable (and unnecessary) costs could be ill afforded and the damage to the couple’s future relationship as co parents would be irreparable. Ultimately, the result would be the same: a marriage as dead as a dodo. So I answer the questions put to me honestly, advise on costs and am supportive and respectful during a time of great soul searching and transition. I also sow the seed that is easier to be in control of a process you dislike than be forced to react to it in the hope that time will nurture it quietly.
I point out that a weak petition may fail, a defended divorce will delay the inevitable and suggest a two year separation and a divorce by consent. It allows one spouse the comfort of finality on a risk free (and cost effective) basis whilst the other has breathing space. Maybe to win back a spouse but certainly to reconcile themselves to the breakdown of the relationship and, hopefully, to realise of his or her own accord that it is better to be out of an unhappy marriage than fighting a losing battle.
I am a fervent believer that forcing a divorce at a pace much faster than that of the partner struggling with the decision is usually counterproductive. Sometimes waiting does save costs, ensure both spouses are in a good position to make fair and sensible financial decisions and preserve a parenting relationship.
Unfortunately, it think it is unlikely that the solicitor of the other spouse will agree.

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Are you my new mummy? And other horror stories….

Meeting new partners can be a fraught issue but with careful and sensitive management and a bit of realism it does not have to be an explosive one.

The thought of children spending time with their parent and new partner can be extremely painful for the other parent. It helps to bear this is mind initially (put yourself in their shoes and think how you would feel if your children were spending time with another man and woman) although the main focus should be one what is best for the children involved.

My advice is to wait until the new relationship is stable and permanent before introducing new partners. People coming and going out of children’s lives can be confusing and, if they form attachments, painful.

Do it gradually and initially in neutral and fun environments like cafes or parks for short periods of time. Don’t force children to interact with a new partner (always counterproductive) but let them get used to a new person and develop their own interest/relationship.

Don’t tell lies about the relationship but don’t overload them with information either. Adult relationships can be complex and threatening for children. Limit the demonstrative stuff. Small children may feel neglected and it will be off putting for older children.

Make sure you have quality time alone with your children, even when they know your partner well. It is important for them to feel they have you to themselves sometimes.

Of course, real life often intervenes in the best laid plans and various parts of your life cannot be kept separate indefinitely. I would always advise that the other parent is informed about a meeting with a new partner, even though the response may not be what you wish. If you do the above, let the other parent know you are doing it and watch your child carefully for any discomfort or confusion, then the other parent cannot complain too much.

How you spend time with your children (and with whom) during contact is an exercise of parental responsibility and for each parent to decide when their children are with them. The Court will not make orders prohibiting children from meeting people during contact unless doing so would put the children at risk of significant harm.

New partners can prove to be a valuable and valued presence in children’s lives as long as the situation is handled carefully.  They can also enhance and, in some cases, improve contact.  With compassion, common sense and a good dose of realism you can’t go too far wrong.

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Unmeshing the Mesher Order: A Magical Solution?

Creating two homes where once there was one is often an impossible conjuring trick for separating families. Often there isn’t enough equity in the family home for both parents to purchase new properties and mortgage capacities are often stretched to the limits in any event.

 

Section 25 of the Matrimonial Causes Act 1975 sets out the various factors the Court needs to consider when reaching decisions on financial settlements (such as the resources and needs of the parties, earning capacity, health issues etc) but makes it clear that the children will be the first consideration.

 

Ensuring the children of the family are safely and securely housed is therefore usually the first issue to tackle. It is important to try to ensure both parents have a comfortable home to spend time with the children but this is not always possible and priority must be given to ensuring one home is preserved or that the home in which the children spend most of the time is secure.

 

Mesher orders can be useful in ensuring a home for children is maintained throughout their minority whilst protecting the interest of the other parent. The Court will usually try to release some capital to the other parent if possible with the balance following when the children are grown. There are also other potential trigger events for the crystallisation of the other parent’s interest e.g. sale or remarriage. If it is not possible any funds to be released now, then the Court will usually strive to keep the other parent’s income as unburdened as possible so he or she can rehouse with either a larger mortgage or rent in the interim.

 

A sale of a family home which essentially makes both parties homeless and dependent on temporary accommodation creates a legal and practical problem and will very rarely be the best option for the children of the family. A Mesher Order may well be the sensible solution but, having looked at all the circumstances, a family lawyer may well come up with some other creative solutions to consider as well.

 

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The Separated Family’s 12 Days of Christmas

Survival advice from coach, therapist and counsellor Jackie Walker

A partridge in a pear tree – ‘The Family’
Divorced, separated or together – there are two parents, and children. This constitutes a family. Even when parents have divorced, the family will still be part of the children’s mindset.

Two turtle doves – ‘Two Homes’
There is no hard and fast rule for parents to follow with regard spending Christmas with their children. Very often, parents take it in turn to be with their children on Christmas morning. There are many elaborate and ingenious ways to create the best for everyone.

Three French hens – ‘Presents’
Presents will come from Mum, from Dad, from Santa. Or it might be that there are two Santa’s. Given that he’s not real, it’s not a problem for him to visit both homes. Many parents choose to club together to give their children joint presents.

Four Calling Birds – Contact
Nearly every parent I know wants to speak to their child on Christmas Day if they are unable to be with them. Keeping in touch by telephone, text, email and Skype are four options which can be used liberally. Make sure you know who is calling whom, when and what number to use.

Five Gold Rings – 5 basic rules
Respect – respect the other parent as a human being and a parent with feelings
Understanding – try to use some empathy as to how you would feel in their shoes
Communication – about presents, pick up/drop off times, if there are changes
Innocence – your ex may not be perfect, but they are doing the best they can with what they know
Generosity – of spirit if nothing else, someone has to start, make it you

Six Geese a Laying – Lay some foundations
If this is your first year as separated parents, you might not yet have new traditions in place. Rather than being sad about losing the old ones, start planning some new ones. Invite new friends round, visit different relatives, get some new decorations (or make them). Ask the children to help you cook the meal.

Seven Swans a Swimming – Go with the flow
Swans appear to glide effortlessly over the water, while underneath their feet are paddling madly to move them forward. Remaining calm with your ex will stop you from creating waves. If there is mad paddling going on inside you, learn some relaxation techniques to get rid of the negative feelings.

Eight Maids a Milking – Pay Attention
Are you paying attention to your own cow which needs milking or are you trying to milk a situation for all it’s worth? Focussing on yourself and making sure that you are doing the best you can for you and your children instead of paying attention to what your ex is doing/not doing is much more satisfying.

Nine Ladies Dancing – Turn up the music
It’s not just ladies who like to dance, children love it. Stick on some uplifting music and dance or sing. Go and watch a pantomime. Find a carol service and join in.
Ten Lords a Leaping – Leap of Faith
Sometimes it feels easier to be angry and sad than it is to take control of your feelings, thoughts and life. Take a leap of faith to remember that no matter what you have ‘lost’ you still have plenty for which to be grateful. It’s impossible to grateful and depressed in the same moment.

Eleven Pipers Piping – Icing on the cake
Your happiness is yours alone and is the icing on the cake for most. Start paying attention to when you are happy and do more of it. It may be simple things like receiving cards, cooking dinner, walking in the park, exercising, taking a bath, talking to friends, doing well at work, hugging the kids.

Twelve Drummers Drumming – Repercussions
It should be remembered that every action has a consequence. Step carefully and make sure you are making a wise choice for all concerned. If in doubt, don’t. Learn to work from your heart with your children at the forefront of your mind, and not from a feeling of anger, or spite.

Jackie has a 30% discount for a one hour session by telephone/Skype to be booked and paid before 24th December and taken by the 31st December.

 http://jackiewalker.me/immediate-help/

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Should Separated Mothers Work? Revisited….

My initial short blog came about in response to a query from a father who had been separated for 10 years and whose former wife had made it quite clear that she had no intention of seeking paid employment. The children were well into their teens and father still paid all expenses directly. As a result, he was still living in his parents’ spare bedroom. There was a distinct inequality in the parents’ living circumstances and this obviously affected (and had affected) his time with his children.

This is perhaps a more extreme example but facets of it are true in a lot of cases. Whilst most people are not prepared to screw their former spouse to the wall, many do feel a great sense of injustice when a relationship breaks down, a belief that ‘it is not my fault’ and feel sure that their life, and that of their children, should not change. Unfortunately, the law is above all things dispassionate and pragmatic and will require that both parents cut their cloth.

There are situations where spousal maintenance is appropriate but there are 3 important points to consider:

1. It depends on the payer’s ability to pay

Needs may be completely reasonable and justified but if there isn’t sufficient funds to pay spousal maintenance, it will not be awarded by the Court. This is a purely mathematical exercise.

2. The Court has a duty to impose a financial clean break wherever possible

Therefore, lawyers have to consider other options to limit or offset spousal maintenance with lump sum or property transfers and it is often limited to a period of retraining or adjustment unless there is a great differential in the parties’ earning capacities.

One parent is often very anxious to retain a family home at the time of great change for children, quite understandably. A larger capital settlement for that parent can sometimes be justified so long as that parent does not also seek significant spousal maintenance in order to run that property.

Here parents can be very creative. I have known parents open hypnotherapy studios in the garden, register for childminding or take lodgers to cover the deficit. I have also known parents, when pain has subsided a little and life seems a bit more manageable, accept a new start in a less expensive property might be preferable to spending the children’s teenage years without any disposable income to purchase so much as a cinema ticket.

3. Shared residence orders are now supposed to be the rule rather than exception

Whilst shared residence does not mean equal time with children it usually does incorporate weekday time and parents are more and more likely to share the costs of childcare. Childcare is expensive but, for many parents, it is necessary to pay it and top up an already stretched income before and after separation. Making two houses from one is always going to be a financial conjuring trick.

Last week, in a case of mine, an experienced and well regarded family judge told the mother that it was in her best interest and her child’s best interests for her to work. The child in this instance was 2 years old. Guidance does not come clearer than that and to suggest to a parent that all of his or her expenses will be paid by the other parent is setting them up for a fall. It is more difficult to give this straight advice from the outset but more responsible than providing false promises and, when responsibility has been taken away from parents and the Court has imposed a decision, presenting a £20,000 bill.

If the Court is unlikely to award spousal maintenance, parents must be advised of this. This should of course first be discussed between parents but there are rarely surplus funds and parents often want guidance as to what they can expect to receive or what they should be paying so they can have informed discussions with their spouses.

I often give advice I don’t like and clients do not want to hear. I am paid to advise on the law as it is and not how it should be. I care deeply about my clients and work hard with them at a time of great change. I believe I also have a professional and moral responsibility to plan, prepare and problem solve through these changes with my clients. I have explained how to pay gas bills, poured over college prospectuses, mentally planned holidays alone and redecorated living rooms, reviewed job applications and written the odd reference.

If it is clear that there will be a deficit between income and expenses this must be addressed practically if spousal maintenance is not appropriate. Return to work or an increase in hours often form part of this discussion, particularly as building self confidence and esteem, achieving independence and making new friends are very important (if challenging) for some.

I make no judgement as to whether separated mothers should or should not work. Many would prefer financial constraint than compromise on how they feel they should raise their children. Many separated fathers concur. But the economic situation of both parents very often means spousal maintenance is not a viable solution. Ultimately, if the Court considers mother could undertake some paid work then this will be factored into the likely order and solicitors must advise on how the deficit can be met. The decision on how she will do so, is, of course, hers.

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I was always a skeptic about Couples Counselling….

I was always a skeptic about couples counselling. After all, you can’t manufacture love. You can’t ‘talk’ it into existence if it has been extinguished. Better just to accept love is gone, tidy up the mess and move on, than accept a life half lived.

But dealing day in day out with people who loves have been trampled by anger, humiliated by betrayal, frozen by grief and withered by neglect, it is clear than love never really is extinguished. It remains, squashed, around the edges. Sometimes transformed into anger and frustration, often loitering in disappointment or hurt and always present in the care and concern for children’s other parent.

So it is not a surprise that with expert help and commitment, two people can reopen channels of communication, revaluate, learn from the bad stuff and move forward together in pursuit of a shared future. The shared accomplishment and allegiance of attending couples counselling in itself can be enough to fan those fragile sparks of love into something a little more substantial.

That is not to say it is easy. Couples counselling is exhausting, frustrating and painful. But it is also enlightening, humbling and strengthening. Separating is not easy either. The choice has to be made about whether a new beginning should be made together or apart.

Is couples counselling always successful? It depends how you define success. Not everyone who attends couples counselling will fall magically back in love with their partner and live happy ever after, although many do. For some, divisions will be too deep and distance too great to conquer.

But there are still little successes. There is a huge satisfaction and loyalty in knowing you did your utmost to try to work through relationship breakdown. Couples counselling is also a learning experience. It is an opportunity to recognise where mistakes were made and outdated priorities can be rejigged so they aren’t carried into new relationships (For every person who looks for a new partner more in keeping with their changed self, there is another who hooks up with a new partner who is simply a different version of the old one and we all know how that story ends!)

It is also an opening to try to create some level of communication with your estranged partner. Separation creates a whole multitude of practical as well as emotional decisions that need to be talked through. They remain joint decisions and will do for some time if you are continuing to co parent after separation. However, even if there are no reasons whatsoever to clap eyes on each other post separation, there are considerable benefits to maintaining a dialogue.

All too often separating couples try to use the legal process as a means of communicating the one thing the Court system is totally ill equipped to deal with: feelings. Airing grievances via Court papers and solicitors’ correspondence is perpetually unsatisfying and horribly expensive. It makes much more sense to deal with issues in the more conducive and private arena of couples counselling, from an emotional and economic perspective and move forward to deal with the changes that need to be made with a clearer head.

Couples who can separate their feelings from their financial decisions can and do reach speedy and sensible financial settlements that can be implemented with reduced expense. Maintaining a dialogue with your partner means you use your family lawyer only for the bits of the process where he or she can really add value.

In short, if couples counselling does not save your marriage, it may well save you a heap of regret, as well as a fortune in legal fees.

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Should Mothers Work? Whether they want to or not…

When married parent’s separate, the Court’s first consideration is the children’s welfare so financial arrangements are often put in place that benefit, on the face of it, the primary carer as the parent with the greater ‘need’. However both parents are expected to do their utmost to provide for their children (so far as child care responsibilities allow) and both parents need a similar standard of home (so far as is practical) so contact time is comfortable, safe and secure, as well as time in other home.

People’s skill, experience and time out of the workforce are relevant but once children are at school there is a clear window when mother’s can work. A lot of judges would think it appropriate that mothers return at least to part time work when their children start primary school, and most would expect them to be in some kind of paid employment by the time children are in secondary school. I appreciate that the benefits system is subject to an overhaul, but often part time work can leave to significant tax credits etc which can assist hugely.

There is also the idea that mothers should plan for the time when they do not have dependent children and financial provision will stop. It is going to be difficult to secure work after 10 years out of the workforce but even more so after 20 years! This is one reason why I would urge fathers currently paying for everything to address this problem sooner rather than later.

Child support is fixed by a statutory formula and discounted to take into account the care given by the non resident parent. Child support, earnings and state benefits should be deducted from the primary carer’s needs and only then, if there is a deficit, should the appropriateness of additional or spousal maintenance be considered. If appropriate, it should be reviewable and proper provision made for it to cease in time.

I would urge any parent paying all of their former spouse’s expenses to seek legal advice so the proper level of payment should be put in place in the correct framework.

The last point to make is that school fees will not be prioritised over homes for both parents, however unpalatable that may seem to both parents.

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