Do I need a Solicitor for a divorce?

Do I need a Solicitor for a divorce?

This is a familiar question to family lawyers and in this article we explore the various scenarios were a solicitor can assist you and the potential pitfalls of going it alone…

1.       Do I need a solicitor if my spouse has issued the divorce application?

Where your spouse has made the application then they are in reality doing the lion’s share of the work including the preparation of documentation and meeting the court fee.   There is however an obligation upon you as the “respondent” to respond and potential cost consequences if you do not do so.   It is also of course important to check the information contained in their application is correct to avoid storing up problems further down the line.  Added to that is that it may not be in your interest for them to apply for the “final order” until finances are resolved which can require careful negotiation with the other side.

2.       Do I need a solicitor if my spouse and I have reached our own agreement in respect of finances?

Whilst our advice is always to enter into full financial disclosure before considering making offers and reaching agreements in respect of finances, we are aware that many couples reach their own agreement outside of solicitor based negotiations.  If you and your spouse reach an agreement you are both happy with it is important to make sure that this is made into a water tight legally binding agreement known as a Consent Order.   This is crucial to prevent financial claims many years down the line when one spouse no longer considers the historical agreement reached to be fair.  Regardless of whether you both wrote and signed up to an agreement it is NOT legally binding unless it is in the correct format and most importantly, approved by a judge.

3.       Do I need a solicitor if my spouse’s solicitor has prepared the consent order?

If a legal professional has prepared the consent order on behalf of your spouse recording the agreement you have reached, it is still imperative that you have your own legal advice on the document so you ensure you know what you are signing up to and ensure that it accurately reflects what you have agreed.  Remember, the solicitor has prepared the consent order taking into account the best interest of your spouse and is not able to provide you with any advice.  A consent order cannot be revisited at a later date once it has been sealed purely on the basis that one party had not sought legal advice and did not know what they were signing up to.

4.       Do I need my own solicitor if we want to proceed jointly?

In the event you and your spouse have reached an agreement together and you want that making into a legally binding document, known as a consent order, you can both instruct the same solicitor.   We are familiar with acting on behalf of both parties and this can be a beneficial option where both parties know what they want and are on good term. Please note that in these circumstances it is strictly to record the agreement you have reached, advice cannot be provided where the solicitor is acting for both spouses as they may have conflicting interests.

5.       Do I need a solicitor if I don’t want to make a financial claim against my spouse?

It is not unusual for parties to say they simply want to retain the assets in their sole name or that there are no assets to be divided.    Our first job as family lawyers is to establish what is in the matrimonial pot.  There may be substantial assets that you are not aware of such as a sizeable pension pot built up during the marriage.   There is also the risk that even if you have no assets now, you may grow your assets and income in the future and without a clean break consent order there is nothing preventing your client making a claim years in the future. 

6.       Do I need a solicitor now if me and my spouse aren’t ready to proceed with a divorce?

Quite often parties are not emotionally ready to proceed with a divorce when they first separate or for other reasons such as religious beliefs.  Even if you do not wish to proceed with a divorce, we can assist with preparing a separation agreement setting out the parties agreement relating to finances or a formal legal separation application.

7.       Do I need a solicitor if I am worried it will “rock the boat” with my spouse?

Often clients will say they have been reluctant to instruct solicitors as their spouse has told them that involving lawyers will create animosity.  This is really not the case, we abide by the Resolution code of practice and actively encourage clients to take an amicable and constructive approach and often assist in taking the heat out of situations.  Clients will often say keeping legal discussions separate has had a beneficial effect on their co-parenting relationship.

8.       Do I need a solicitor if we are proceeding via Alternative Dispute Resolution?

The law always encourage parties to utilise non-court alternatives to settle their disputes but they are not always appropriate, for example where there has been domestic abuse in a relationship or other imbalances of power.   When utilising alternative dispute resolution it is always important to ensure the correct steps are taken to create the appropriate legally binding document and this is where we can assist.  Further itt may be that you break from mediation to take advice on discussions held so far.

9.       Do I need a solicitor if I don’t want to go to court?

As mentioned above there are a number of alternatives available to court and we can assist in putting you in contact with the right service for you whether that be a referral to mediation, our in-house collaborative lawyer or arranging a private Financial Dispute Resolution or simply our negotiating on your behalf.  There are many alternatives available if you do not want to go down the court route and it is not always inevitable.

10.   Do I need a solicitor if funds are tight?

Separating from your spouse can be an expensive business particularly going from a two income household to having to manage on one wage.  There is often the temptation to not seek legal advice because it is another cost but it can be invaluable in helping you achieve the best outcome for your finances in the long run.   Where clients do not have the money to pay their fees as they go along, there are potential alternatives available including legal aid in limited circumstances, monthly payment plans and litigation loans where the monies are repaid out of the ultimate settlement.

The law around family matters is not straight forward and when you are navigating the emotional minefield of a relationship breakdown a family solicitor can be a great source of support.   If there are any areas detailed above that you would like advice around then please do not hesitate to get in contact with us on 01270 613939.