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Wherever possible it is preferable if financial issues can be resolved by agreement. Everyone’s financial circumstances are different. Negotiating a settlement or dealing with financial court proceedings requires a great deal of skill. There are often numerous financial issues that will need to be addressed such as division of property, savings, pensions, debts and payment of maintenance both for a spouse or children.
From the outset your solicitor will be able to advise you of matters that you need to consider in relation to your specific circumstances, and will discuss options as to how you may wish to try and resolve matters often by negotiation through your solicitor or mediation.
If agreement can be reached it is very important that the agreement is properly reflected in writing. Usually the agreement should be incorporated into a court order referred to as a Consent Order, to ensure that the agreement is binding.
Whilst your solicitor will try hard to resolve matters by agreement, in some cases this is not possible and court proceedings may be required. Our solicitors have considerable experience of dealing with court cases of varying degrees of complexity and value and will work hard for you to achieve the best possible outcome.
At JWP solicitors we always have a transparent approach to our fees. Our solicitors will at the outset of your case set out clearly the likely costs. In most cases we can deal with financial matters on divorce for a fixed price. If your case is complex or if you prefer we can deal with your case using our hourly charging rate. We will also assess you for eligibility for legal aid, which is still available for family cases in certain circumstances.
You can contact us at any time free of charge during the course of, or at the conclusion of your case, with any queries in relation to costs or any other area of client care.
Your solicitor will discuss with you at the outset an appropriate plan for payment of your legal costs.
We now offer comprehensive fixed price packages for most family matters, which include representation at court. To request a comprehensive fixed price brochure please contact us on 01924 387 171
There is no set formula for working out financial issues upon divorce. In order to assist you we will require full details of yours and your former partner’s circumstances, which will need to include full financial disclosure. Upon receipt of all relevant information and documentation we will then advise you, having regard to the same criteria applied by the courts as to what the terms of an appropriate settlement may be. Such advice will include consideration of all financial elements of your case, which will include division of property, savings and investments etc., dealing with any debts, division of pensions and spousal and/or child maintenance.
You should generally not consider settlement of any financial issues without full financial disclosure from the other party. Without such disclosure you cannot be certain that any proposed agreement is appropriate in all the circumstances of your case.
If the other party is refusing to provide relevant financial documentation then we will generally advise you to make an application to the court to deal with the financial matters. The courts will Order both parties to provide full financial disclosure and has various powers to punish any party that refuses to comply with a Court Order.
If the financial matters can be resolved by agreement then very often it will be possible to deal with them properly by way of a Consent Order within the divorce proceedings. This would normally take four to five months.
If court proceedings are issued then resolving the financial matters may take anywhere between three to nine months.
When you issue proceedings the court will list a first hearing to take place approximately three months later. Prior to that hearing each party will be required to provide full details of their financial circumstances and a signed financial statement; which is in the form required by the court.
Sometimes it is possible to resolve matters by agreement, following the exchange of disclosure and prior to the first court hearing. If agreement is not reached before the first hearing then the court can be asked to assist the parties in resolving any remaining issues in dispute.
If matters cannot be resolved then sometimes, if further information or documentation is required, the court will order this to be obtained and a second hearing will take place specifically for the purposes of the court trying to assist the parties in reaching an agreement. If an agreement is still not possible then your case will be listed for a final hearing at which the Judge will impose an Order on both parties.
In order to ensure that the agreement is binding it needs to be incorporated into a Court Order, referred to as a “Consent Order”. If the court approves the Order then it will be legally binding upon the parties.
In the majority of cases once the court has approved a Consent Order or imposed an Order at a final hearing that Order will effect a financial “clean break”. The effect of this is to ensure that neither party can make any further applications to the court in the future.
In some cases the parties will agree, or the court will determine, that a clean break is not appropriate. There can be a number of reasons for this and in these circumstances either one party will be ordered to pay spousal maintenance to the other, or a “Nominal Maintenance Order” will be made, which will keep the parties’ future claims alive.
If a Spousal Maintenance Order, or a Nominal Maintenance Order is made then either party will be at liberty to apply to the court again in the future to vary that Order. Upon making an application to vary an Order the court will consider the circumstances at that time and whether there is sufficient reason to warrant a variation. Upon any further application the court can also consider again whether a clean break Order is appropriate at that stage.
It is not uncommon for parties, following the breakdown of a marriage, to decide that they would not want to proceed with a divorce at that time. There can be a number of reasons for this. The financial issues can only be dealt with in a Consent Order where there are divorce proceedings. If no divorce proceedings are issued then any agreement reached with regard to the financial matters can be incorporated into a “Deed of Separation”, which will record the terms of settlement.
A Deed of Separation can be a very useful document. The terms of the agreement are often adhered to within any subsequent divorce proceedings, and incorporated into a Consent Order on divorce. It is important to be aware, however, that the Deed of Separation cannot prevent the court from being asked to consider the financial matters on a subsequent divorce and the court does retain the discretion to vary the terms of the agreement.
It is always sensible to have an up to date Will reflecting your wishes. If you are dealing with family matters, either when entering into a new relationship, or upon breakdown of a relationship then you should consider preparing or updating your Will. A Will can also set out your wishes in relation to the care of any child(ren) in the event of your death.
JWP Solicitors Director
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