THE BLOG

Divorce - What NOT to Do...

27/05/2016 10:16 | Updated 27 May 2016

Over the years I have heard all manner of suggestions about how to act when separating or divorce. It is a rarity for this advice to have any merit whatsoever - sometimes I can understand why it is given - but sometimes it really falls into the category of roll your eyes stupidity.

No doubt the advice of family and friends will be well meaning but it is likely to be among the worst suggestions that could be made.

I have compiled a list of some of the worst recommendations...

1. Change the locks. Sometimes this is suggested if a spouse won't move out or has moved out and this is proposed as a method of securing the removal. Either way it ignores some fundamental issues. The marital home is matrimonial property and each party has rights to it - unless there is an agreement, it is only the court that can regulate occupation - and if you do remove your husband or wife a judge could intervene and order their return - and give you a big legal bill in the process.

2. Stop contact between the children and your spouse if they are not paying child maintenance. This runs hand in hand with:

3. Don't pay child maintenance unless your spouse is letting you have contact with the children.

Both of these suggestions raise a number of issues. The question of contact (or child arrangement orders) must not be tied to questions of money. Any attempt to link the two will simply not work.

The law in this area is clear - a child should have a relationship with both parents unless that would not be in their best interests. Limiting or terminating contact between your children and your spouse for any reason concerning the payment or otherwise of money is going to fail because it almost inevitably won't be in their best interests.

If you are the spouse who is in this situation and are finding that your contact has been reduced or terminated then the appropriate course of action is to apply to the court for a Child arrangement Order to be put in place. Terminating child maintenance payments is not the answer - two wrongs don't make a right and it hurts the children if the other parent can't feed them!

4. Withdraw all the money from joint bank accounts. Hey, this has to make sense right - this way you make sure that your spouse won't do it! Well actually no - taking money from a joint bank account without your spouse's knowledge or consent runs the very real risk that a judge will form the view that you are the bad guy. If you have spent the money by the time that the withdrawal is noticed then it will be even worse and the notional amount could be added back and treated as if you still had it - and that could have disastrous consequences for you. Before withdrawing any large sum take proper legal advice and get your spouse to consent in writing.

5. Make sure you get a divorce as fast as you can/ drag things out for as long as you can. Whilst it is often the case that the longer a case goes on the more it will cost what must be considered in a divorce matter is that involves emotion - and lots of it. The process will be much smoother and less fraught with difficulties if both parties are in the same emotional space and jointly conclude that a divorce is for the best. Trying to rush a spouse into divorce when they are not ready emotionally for it may actually slow down the process - and therefore cost more. It has to be preferable to allow your spouse the time to come to terms with the situation.

Similarly deliberately dragging your feet in the divorce is just as bad. It will increase both the physical and emotional cost for you both and that is in no-one's best interests.

6. Stash some money away so you have a pot to rely on after separation/divorce. This is something that many people think about - and in some ways it is fine. However it is really important to remember that when dealing with financial remedy claims there is a duty of full and frank disclosure. This means that it is your duty to tell your spouse what you have. This includes any nest egg that you might have saved up - not disclosing it is a very serious issue. At best if it is found it will ruin your credibility in front of the judge and be added back - at worst it could be considered a contempt of court and in extreme cases lead to imprisonment.

7. Be a litigant in person - you don't require a solicitor. There are a few cases where you might consider acting in person - for example if there are no assets, no children, and where neither party wants to make a claim against the other (and even then I would still suggest that a Consent Order is still appropriate to tie up all loose ends). The system can be complicated, daunting and somewhat overwhelming to those not used to it - not to mention that you probably don't know the law or how to complete disclosure. Trying to navigate this at a time of probably the greatest stress you will ever know simply cannot be an ideal scenario or conducive to effective settlement. Don't be penny wise and pound foolish.

8. Stay together for the sake of the children. It goes without saying that if possible keeping together a happy nuclear family is preferable - however everyone deserves happiness and remaining in a bad relationship can be damaging for the children. You do not need to settle for a bad relationship and usually merely delays the inevitable.

9. Get yourself a Rottweiler. This is almost never a sensible option. The choice of solicitor is really important and unless you want a blood bath, a no holds barred, heavily litigated approach is quite possibly the worst approach that you could take. It is stressful and damaging to your pocket. Once your spouse sees you have retained an aggressive lawyer, they are likely to do the same - all of which could lead to an incendiary situation. This is not to say that there are cases and occasions which do call for firm, decisive and robust action but rather than starting a "war" of your divorce immediately a far better approach would be to take a more amicable and collaborative route initially. If that fails, you can always fight.

10. Keep the detail away from your solicitor. Sometimes clients believe that if they keep things secret from their solicitor that it will somehow go away. It won't. Don't hide money or the fact of an affair. Your solicitor needs to know what the potential hazards and challenges are in your case so that plans can be made to deal with them.

The best advice that anyone can give you is to take professional advice and ignore the suggestions which come from family and friends - as unwittingly they can do you more harm than good.

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