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Filing for divorce: a practical guide for common fears

By Courtney Bosley -

If you want to apply for divorce but are worried about becoming financially vulnerable or potentially losing custody or contact with your children, here are a few tips which can help you to make the strongest start in your matrimonial proceedings.

If you are considering a divorce it is always best to seek full legal advice, which can be tailored specifically for your situation.

'You don't know how much money there is': Getting financial information

Does your spouse control the finances? If you’re looking to get divorced, the more you know about your financial situation, the better your solicitors can prepare your case. Without breaching the Imerman guidelines, it could help your legal team to advise you better if you know how many properties you own, both together and individually, and whether your spouse has any bank accounts or shares in any businesses, together with their estimated worth. While any solicitor can research your case for you, and so you shouldn’t worry if you don’t have this information to hand, being able to direct your solicitors to foreign assets or bank accounts, and any companies that may be involved can allow them to research your case and even to prepare precautions against any potential underhand behaviour that the other side may try. Better informed really is better armed.

‘You won’t get a penny’: Financial settlements

If you are not the main breadwinner in the relationship, it is important that you don’t let the fear of becoming financially vulnerable leave you trapped in a marriage. When the courts consider finances in matrimonial proceedings, they always look at the financially weaker party’s needs first. Therefore, no matter your circumstances, it is virtually impossible for a court to award you nothing. Even if your partner has worked while you raised the children, you are still entitled to a share of the matrimonial assets. The court’s starting point will always be a 50/50 split, and they will take a dim view of the financially stronger party arguing that you should receive less than that, particularly where your income raising capacity may be less than theirs or you will continue to look after the children after the separation.

‘You can’t afford solicitors’: Funding your case

Litigation can be costly, and therefore sometimes the financially weaker party in a marriage can be afraid that they will not be able to afford legal representation. However, both parties in matrimonial proceedings are entitled to proper and equal representation. If you cannot afford your legal fees yourself, and your spouse is the financially stronger party, your solicitors can write to them in the first instance to request that they pay your legal fees. If they refuse, your solicitors could then consult various litigation funders and, if that fails, apply to the courts for a Legal Services Provision Order. If the court grants the LSPO, your spouse will be obliged to pay some or all of your legal fees as per the court order. Therefore, even if you do not have the funds readily available to pay for your case, there are several options that your legal team could consider to ensure that you have access to proper legal representation. You may also be able to secure a specialist litigation loan which will pay your legal fees until you are able to receive you settlement.

‘You’ll never see the children again’: Contact with your children and the status quo

While there is a pre-conception that mothers get automatic custody of children, the factors that the court will consider actually revolve around the status quo. This means that if the father is the one who looks after the children on a daily basis, e.g. taking them to school or making them supper in the evenings, then there would be an argument that the status quo would be for the children to live with him rather than the mother. The courts will prioritise the children’s best interests, and while this means that they will generally live with their primary carer, if you genuinely share care with your partner, this can lead to more flexible living and residence arrangements. Every family is different and therefore the courts don’t like to be prescriptive, preferring for parents to agree arrangements between themselves. If you are considering child arrangements after separation, the most important thing is to work out what would be best for your children and take legal advice on your best course of action.

 

If you would like to know more about the issues covered in this article, Vardags offers a free consultation to qualifying individuals.

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Courtney Bosley

In 2015, Courtney completed the Graduate Diploma in Law with City University. She subsequently completed her LPC with BPP Law School in Holborn in 2016, gain...