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How to Keep Divorce Costs Down

02/05/2013 22:36 BST | Updated 01/07/2013 10:12 BST

Divorce: nasty battles, in-fighting... watching friends or family members going through divorce paints an unenviable emotional, as well as an often expensive financial picture.

What's more, spiralling costs and poor-quality legal services are compounding the process of divorce...

Earlier this year, findings by the law watchdog, the Legal Ombudsman for England and Wales, showed complaints by the clients of legal firms in divorce and family law cases were far higher than in any other category, with 13% of clients reporting they were dissatisfied with their lawyers. Eighteen per cent of those complaints were of failure to provide adequate service.

And an impending rise in the numbers of divorcing couples having to pay for their own legal representation will undoubtedly see such figures balloon.

As of April, legal aid has been cut, meaning 200,000 couples going through divorce each year - who would previously have received public funding for their legal fees - will no longer get it.

Rising tensions

Many married couples have been put off starting divorce proceedings, in the recession, due to the costs involved. They are alternatively separating or even still living in the same house together because they can't face the cost of the legal battle.

Couples who agree all aspects to a split can reduce legal costs on divorce significantly, but add any contested aspects to the grounds for divorce, or introduce fears over future maintenance for childcare or suspicion that a spouse has offshore assets or hidden wealth, and the legal fees start mounting.

"My job is to use the mediation approach wherever appropriate, to avoid all the heartache, avoid the legal costs and keep stress levels to a minimum."

 

Divorcing couples can end up with large bills because of other factors, too.

Typically, the temperature is higher than it needs to be. The parties involved are likely not communicating at their best, bearing in mind the situation in which they find themselves. It could also be because one particular party is acting out of emotion rather that logic.

In my experience, about 90% of cases tend to settle before any final hearing. So it is the exception rather than the rule that they go to a final hearing after about a year's worth of litigation or more.

Where people are upset by unexpectedly big legal bills at the end is often because of a lack of management by their solicitors, because they did not give the client clear cost estimates at the beginning. Regularly reviewing costs when extra work is required over matters that could not have been predicted at the outset is also helpful for the client.

There is an element too of emotions running so high that clients cannot understand sometimes what they are told regarding costs, or don't fully understand that the more time they spend with their lawyer, the greater their bill will be. For solicitors, it's imperative in this case that they update clients, even if it is simply to say the initial costs estimate is still accurate.

Long haul

Many couples don't realise when they begin getting divorced, that it is just simply the start of a process, rather than the end. While the marriage may be over, the commencement of divorce proceedings mark the start of a structured procedure that can take months, sometimes even years, to finalise.

It is however possible to speed through this process, where a spouse settles early because they're convinced it's just not worth the fight or the couple are able to come to an amicable agreement, where all the information required is brought, readily, to the table.

At the opposite end of the scale, if a client instructs family lawyers who specialise just in family work, those lawyers will be abiding by a code of practice that means they must seek to bring the temperature down as part of their duty to the client.

We have to recommend ways in which we can do this. One of those ways is sending the parties to mediation, where appropriate, so they sit down with a completely neutral third party, look at the options in terms of settlement, and come to an agreement that avoids them having to go to court. That's a very good way of bringing the cost down.

Mediators are usually trained family lawyers - a bit like myself - but they are there in a different capacity, and not as the legal advisor for either party. They know what is likely to happen for those clients if the case goes to court. And they will know the best and worse-case scenarios. Armed with that knowledge, they can guide the parties towards what is likely to be the best outcome for them.

If a mediator can foresee what a judge is likely to rule, you might wonder why couples don't just use them, and save on the rest of the legal fees. The answer to that is that the parties still need advice on whether the agreement they are considering entering into is in their best interests: then that agreement needs to be made binding, usually by a court order.

Battle lines

My job is to use the mediation approach wherever appropriate, so as to avoid all the heartache, avoid the legal costs and keep stress levels to a minimum for a client.

It is feasible to get divorced without ever seeing a lawyer, however, and the divorce process itself in this case, is quite straightforward. When you hear of parties talking about a very protracted divorce, they're usually talking about the financial settlement and not about the process.

What complicates this process and brings lawyers in is usually either over finances or when there are children involved. Sometimes exceptionally, couples will fight about both. But if there is money to argue over, they'll do that. If there's no money, fighting tends to occur over the children.

People assume when there isn't much to share, there's less to argue about. But when people are on very low incomes and there's very little equity in the house or if there is no property at all, when every single penny counts, divorce can get as equally bitter as it can when there are millions at stake.

This is largely because a settlement in this case can seem extremely unfair to the party who isn't living with the children, because the court will generally decide those cases are what's called 'needs-based'. So the needs of the children will be right at the top of the list in the settlement. And that quite often means the party who does have the children living with them is going to get a more generous financial settlement, particularly in terms of capital, because the children will simply need housing.

Sex split

Often we hear men saying they ended up much poorer in a divorce, whether they lost their house to their ex-wife or do not have custody of their children, and that they've ended up with very little. But then statistics show that after divorce, women are often worse off and men are better off.

Correlating these two myths is difficult because they are ostensibly about two different things. Regarding the financial settlement, it can quite often be the case that the parent who has the children living with them gets the better deal, particularly when it's a case where there's little money to go around. But women generally take longer to recover emotionally from the consequences of marriage breakdown.

The best advice I can provide, as a family lawyer, in terms of finances and the legalities, is first of all to keep communicating with each other, and this is where mediation can be so very helpful. The more you can talk about issues between yourselves rather than through your lawyers, the lower your costs will be.

The second important point is to find a lawyer who specialises in family law and abides by the code of practice, which means they can't raise the temperature. Contrarily, we have to bring the temperature down wherever we possibly can.

And thirdly, consider some alternative means of mediation. So rather than running to court, let's look at having a round table meeting, rather than sending correspondence backwards and forwards and initiating litigation that might be unnecessary.

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Deborah Jeff is a London divorce lawyer and the Head of Family at Seddons solicitors. She provides expert advice on divorce, family law and marital issues.