Here at Higgins Miller we specialise in family law cases, and that means we’ve guided many clients through divorce cases with a combination of expert legal advice and empathetic support. We also deal with complex and emotionally fraught cases such as adoption, children disputes and wills and probate, and over the years we’ve learned to recognise when our clients are making a mistake. The most common divorce mistakes we come across are the following:
1. Financial Order
One of the most common divorce mistakes involves not getting a financial order. Divorce mistakes of this kind tend to be based on a misapprehension that when a divorce becomes official – what used to be called the decree absolute and is now called a final order – all financial ties between the parties are severed. This is not true, however, and if you reach an agreement regarding your financial arrangements, or even if you feel, as some people do, that you don’t have finances which need to be divided, then a financial order is the only way of ensuring that no financial claims can be made on you in the future. Without a financial order, any agreement between divorcing parties will not be legally binding, and the complex technical nature of such agreements means you should always draft a financial order with the help of a legal expert like those at Higgins Miller.
2. No Financial Planning
Another of the divorce mistakes people often make is to accept a division of assets upon divorce without first engaging in a degree of financial planning. Without sitting down and working out what kind of finances you will need at the time of divorce and in the future, you won’t really know whether the percentage of finances you’re being offered as a financial settlement will be sufficient for you to survive on a practical level.
3. Remarrying too early
As divorce solicitors, we rightly have no control over whether a client starts a new relationship following the end of their marriage. What we can control, however, is whether they make divorce mistakes such as starting to plan their next marriage before the divorce process has been dealt with. If a client remarries without having got a financial order, then they may lose the right to apply for such an order and draw a line under their financial relationship. A financial order of this kind will be decided by a court on the basis of the Matrimonial Causes Act 1973, which places an emphasis on assets being divided fairly at the end of a marriage. Instead, if a client remarries, the Court will deal with applications under the Trusts of Land and Appointment of Trustees Act 1996, which gives them far less discretion when making an order.
4. Tax
The emotional impact of the end of a relationship can often lead to people making divorce mistakes based on forgetting about the technical details. A good example of this is what happens if the family home is sold and the proceeds divided between the spouses, or one spouse transfers their interest in the family home to the other. In most cases, the owner of the property will be able to rely upon the primary residence exemption from capital gains tax, and so not have to pay the tax. If the divorce is delayed, however, and the owner of the property has not been living in it for 9 months, then the exemption will no longer apply. Couples sometimes separate fairly amicably and leave it a while to decide exactly what will happen to the family home, by which time the spouse who left the family home may find themselves paying capital gains tax if the home is sold or they transfer their interest.
5. Rushing to Court
As is the case with many legal situations, we always advise our clients to do everything they can to reach an agreement without having to go to court. One of the key divorce mistakes, however, is for people to rush to court feeling – particularly if the split has been less amicable – that this is the only way they can protect themselves. The truth, however, is that going to court is not only expensive but it is also extremely stressful, and that the results are never particularly predictable. In simple terms, you’ll be putting your divorce settlement in the hands of a judge who has never met you, and who knows nothing about your marriage other than what is presented to them. Discussion and mediation is always going to be a more sensible course to take.
6. A child maintenance “clean break”
In some cases one spouse will agree to accept less of the assets of the relationship in return for a ‘clean break ‘order which means they no longer need to pay spousal maintenance. This is one of the divorce mistakes we warn clients about, however, because there is no such thing in law as a ‘clean break’ when it comes to child maintenance. A spouse agreeing to a clean break of this kind would hand over more of their assets, only to find that they have no defence if, in the future, the other spouse makes a claim for child maintenance which they have no legal right to oppose.
7. Discussing the case with their children
Of all the divorce mistakes a client can make, discussing the case with their children is probably the mistake which is most governed by emotion, and which could have the most damaging long term consequences. Unless you’re dealing with adult children, then there is very little chance that the children in question will have the emotional maturity to understand the issues. The parent in question may be driven by a desire for their child to understand ‘the truth’ of why the divorce is happening, but the fact of the matter is that it is virtually impossible for a party in a divorce to discuss the case in a dispassionate manner. We advise our clients to understand that the spouse in question is still a parent to that child, and will have to have a relationship with them in the future.
8. Informal Legal Advice
When a client is going through the divorce process it is only natural for them to seek emotional support from friends and family. What we often find, however, is that clients also turn to people they know to ask for so called legal advice. Divorce is one of the few areas of the law about which people sometimes feel they know a great deal, but the truth of the matter is that divorce can be a complex legal issue and only experts like those at Higgins Miller will be able to explain exactly what a client’s rights and responsibilities are under the law.
9. The DIY Approach
As is the case when it comes to seeking advice from friends and family, many people may feel – from what they’ve seen on the television or read in other parts of the media – that they know how to organise their own divorce case. The truth of the matter, however, is that everything from filling in seemingly simple forms to reaching an agreed financial settlement can be highly complex, and any mistakes could have an impact which lasts for many years to come. The good news for anyone working on their divorce with Higgins Miller is that we offer a service which involves charging for only specific aspects of the divorce case, such as drafting documents or filing papers, leaving clients free to deal with the less legally complex aspects which they may be able to cope with, while avoiding damaging divorce mistakes.
10. Mental Health
It may not be one of the technical divorce mistakes that people make, but one of the things we always warn our clients about is neglecting their mental health. Divorce, even if it’s fairly amicable, can be a stressful and upsetting process, and anyone working through it needs to take steps to take care of themselves and deal with the emotions being unearthed. Not only will this mean they feel healthier and happier in general, it also means that the communications involved in the divorce are likely to be handled more calmly and effectively.
If you’d like to find out more about avoiding common divorce mistakes please call us on 0161 429 7251 or email us at [email protected]. We’ve recently passed our Cyber Essential accreditation, something which demonstrates our forward-thinking attitude and determination to remain ahead of the competition. The first 20-minute appraisal is provided free of charge, and we’ll give you the first appointment for a fixed fee, so you don’t have to worry about how much our advice is going to cost. If you want to explore our wider charging system then please take a look here.