Divorce and the Court: how to litigate whilst remaining amicable02 Mar 2015
Kuits Solicitors are currently running a campaign ‘Divorce: let’s get it right’, under which it is offering advice through a three-part series covering all aspects of divorce. In the first and second instalments, it dealt with ways to try save a marriage and the alternative dispute resolution methods that are available for couples who feel that divorce is the answer. In this third and final instalment, the firm advises on how to remain amicable even when the divorce ends up in court.
Alternative Dispute Resolution (ADR) allows divorcing spouses to reach agreements in a non-litigious manner. Whilst these methods may prove successful for some, others will have tried and failed, and some will think that they are simply not appropriate for their personal circumstances. In the latter scenarios, proceeding to court may be the only option; however, this does not mean that divorce has to become acrimonious. By taking the time to consider the suggestions below, it is possible for the court process to be a smooth one, free from animosity.
The first port of call will be for both parties to instruct independent lawyers, if they have not already done so. In the event that there are only a couple of issues to take care of, then the lawyers should attempt to negotiate and bridge the gap between both parties’ stances. This will save both time and money – two things that are unfortunately attached to proceeding to court.
If the lawyers are unable to negotiate the matter to completion, then an application must be sent to the court, who will then issue a timetable of events. This should be viewed as a significant advantage of litigating, as it means that the matter will not drag on longer than necessary. Both parties should ensure that they comply with any deadlines imposed by the court so as not to incur any unnecessary costs or delay matters from progressing.
The court timetable will consist of three main stages. Stage one will involve a first appointment, where both parties and their lawyers will come before a judge, who will define the issues at hand and give directions about what needs to be done to progress the matter. The most important document that will need to be filed and served ahead of the first appointment is the Form E. This is a court document listing each person’s financial circumstances. In order to keep things amicable and to allow the matter to progress as quickly as possible, both parties must be willing to cooperate in relation to disclosure.
Other documents that must be filed before the first appointment include a statement of the issues in the case, a chronology, a questionnaire listing information and documents required from the other party, and a form indicating whether the spouses will be able to proceed at the first appointment to a financial dispute resolution (FDR). Just like Form E, all documents should provide as much information as possible and should be completed in time, so as to prevent unnecessary delays.
The second stage is the FDR appointment, during which both parties and their lawyers come before a judge to discuss and negotiate in the hope that a settlement can be reached. Offers should be put forward before the FDR and these should be filed at court in advance of the hearing, so that the judge can consider them.
Spouses should be willing to try their hardest to reach an agreement at FDR stage; indeed, most often manage to. However, if this is not possible, the matter will proceed to a final hearing, where a judge will make a decision after hearing evidence from both parties and submissions from their lawyers. Before a final hearing takes place, any disclosure information has to be updated when necessary. Parties should remember that they have an ongoing duty of disclosure and should honour this duty, so as not to antagonise their spouse or delay matters.
The most important thing for all divorcing couples to remember is that the ultimate goal is to resolve all issues, so that they can move on with their independent lives. With this in mind, spouses should continually make offers so that the matter can be concluded as soon as possible, remembering that the earlier an agreement can be made, the more control they will have over the content of it. In the event the court does have to become involved, both parties should respect any deadlines imposed and be forthcoming with any necessary information so that the process is not delayed. Proceeding to court does not have to result in mudslinging and a total breakdown of communication between the parties. Instead, both spouses should remain respectful and as polite as possible. Divorce can be amicable − it is simply a matter of getting it right. #LetsGetItRight
To find out more about divorce contact our Family Law team or call us on 0161 832 3434.