Legal services

You are currently browsing the archive for the Legal services category.

Online Divorce

 

Regular readers of my blog will be used to me referring to my ‘day job’: as a family solicitor and collaborative lawyer at Brighton based Family Law Partners.  I am fortunate to work with a really strong team which is highly rated in the independent legal directories such as Chambers & Partners and also the Legal 500.  We specialise in offering our clients bespoke services such as mediation and collaborative law which usually involves face-to-face contact.

However, in a small but signifiant shift, we decided some time ago that we would open up access to our online divorce document platform.  My blog subscribers will know that that has been an aim of mine for some time. Our online document platform allows our clients to create their own divorce or civil partnership dissolution documents any time of the day or night.  Then they just let us know when we can review and approve the documents for them.   Previously, we kept such innovations strictly available only to our full-service clients who in the main are drawn from around the South East.

Why online divorce services?

I have tended to think of online divorce services as absolutely fine if the primary need is the processing of the divorce papers in a very straightforward case.  I regarded online divorce services as suitable for uncontested divorces.  As any decent divorce lawyer will know, there are some important strategic considerations to be kept in mind when completing divorce documents.  It is not as straightforward as might be thought.  The contents of a divorce petition can have an impact upon related proceedings dealing with the children or with the finances.

One of the drawbacks with purely online divorce packages appeared to me to be the need for the big players to deal with as many cases as they can.  They need high volume and low operating costs. But it does mean that if you look at the small print in certain of these online divorce websites  it will say that if you want legal advice you must go and speak to a lawyer.  In other words, the people who process the divorce forms are not legally qualified.  If you google ‘online divorce’ you will see the same handful of providers jostling for space at the top of the first page.  Google must make a fortune out of those sponsored links!

My firm is extremely busy.  We are fortunate in that. Did you know that 1,000 high street legal firms have closed down in the last year?  It is quite astonishing.  The disappearance of high street legal firms means that some people will have to rely upon getting online assistance with their divorces and utilise fixed fees.  But they should still get legal advice.  By that, I mean, proper, fully qualified legal advice.  When I look up from my PC at work in our open plan office, I can see a highly experienced legal team – between us we have over 80 years of legal experience, of every sort of case, involving clients from every walk of life.  That experience is hard won. But we regard it as an investment for our future clients.

We know that legal aid has disappeared for most family law cases (but not mediation – remember that please). So although we are busy, we have decided to offer our online divorce platform to the wider public.  This service will not be advertised on my firm’s website – it will only be offered to a small section of the public – mainly to the readers of the Divorce Finance Toolkit blog.  By keeping the take up of this service relatively modest, we can continue to offer proper legal review, from highly experienced lawyers,  to our online divorce clients at a fixed price.

Best of all, I am grateful to my team for letting me offer an exclusive 15% discount for this service to the readers of my blog.  Aside from divorce documents and civil partnership dissolution documents, we also have a pre-nuptial agreement package and a separation deed package.  Click on the banner at the top of the page.  If you decide to use the services please enter the following discount code to save yourself some money:

DFTFLPdisc1

The access to our online divorce services will be kept open for the foreseeable future but we will probably pull it if we get too busy as we would rather keep the quality of the service high by keeping the volume of users low.

Tags: ,

you can still get legal aid for mediation

The government has been pushing mediation as the cure-all answer to its decision to end 60 years of legal aid for most family law work.  Everyone can mediate; who needs family lawyers, seemed to be the rationale.  Get rid of expensive legal aid, put lots of  money grabbing family lawyers out of work and mediation will deliver peace, love and understanding.

Right…

Well, the perfect storm in the world of legal services has continued unabated.  Locally, I am aware of dozens of family law solicitors and legal executives who have lost their jobs as a direct result of the withdrawal of legal aid.  I hear that close to 1,000 high street solicitors firms have closed over the last year alone.  In this respect, the government has succeeded: better still, there are no votes lost in casting lawyers onto the scrapheap.

So, with everything going to plan and all those annoying lawyers out of the picture, the mediation take-up will have rocketed, right?  Completely off the chart, right?  Right…?

Oh dear.  Ministry of Justice figures, as reported in The Guardian and other papers, show that the number of couples accessing mediation to sort out their family law problems has dropped by 47% since April – precisely the time when the legal aid cuts were introduced.  That’s nearly a 50% drop-off in 6 months.  How embarrassing for Mr Grayling, the big cheese at the Ministry of Justice.  This is the sort of policy car-crash that should have a resignation letter winging its way to the Prime Minister:

Dear Dave,

I just want to say how proud I am to have served in your cabinet.  We are responsible for some wonderful achievements and I am sure that history will judge us kindly.  However, it seems that I have made a bit of a hash with the meditation mediation wotsit.  In all fairness, I was only doing what you and George told me to do.  You said it would be all right to get rid of legal aid for family work.  Get rid of the lawyers and pack everyone off to mediation.  Bing, bang bosh, all sorted.  That’s what we told all the nay-sayers.

Well, the silly sods haven’t been going to mediation, have they?  They’ve been clogging up the bloody courts as litigants in person.  Then, some trouble maker only went and put in a freedom of information request.  (For God’s sake, can’t Theresa kick these requests into touch when she kills off the Human Rights Act?)  Anyway,  the ministry suits had to admit that mediation has dropped by half in less than a year.  I know, I know, I was blushing like a nun in a knocking shop.

Funny thing is, it turns out that it was the lawyers we have just kicked out who were making the referrals to mediation in the first place!  Who knew…?   Well, the Law Society and Bar Council did warn us that the sky would fall in but they would say that wouldn’t they?  How was I supposed to know this would happen?  I mean, I’m not a lawyer am I?  In fact, I’m the first non-lawyer in charge of lawyer-type things for nearly 400 years, which I have to say, was a master stroke of yours.  Bloody genius.

To be absolutely straight with you, I’ve never really got my melon around this Rule of Law thing.  Apparently, it’s like, really, really important.  All those lawyers, bigwigs and busybodies keep saying me and Theresa are taking the piss.  We show ‘scant regard’, or ‘contempt’ for constitutional checks and balances.  I don’t even understand what they’re getting their undercrackers in a twist about.  Why can’t they use simple language I’d understand?

So, I’ll be off then.  Spend some time with the family and all that.  Give it 6 months to blow over and then give me a shout.  Quite fancy Health.  Just sayin’…  See you at the next country sup.

Back in the real world, I just want to end by reminding any visitors to this blog that family mediation is still available on Legal Aid for those people adjudged financially eligible.  Good luck.

Tags: ,

pension planning on divorce needs financial planning

Divorce and pension planning

Pension planning on divorce is crucial.  After the matrimonial home, the asset of greatest value accrued during any marriage is likely to be the pension pot.

One of the challenges for a family lawyer is to explain to a client, especially a wife, why she should not ignore her lack of pension provision during divorce proceedings. Understandably, most clients’ priority is the welfare of the kids.  Or keeping the family home.  But once a divorce is obtained, it is imperative that the family lawyer has imported expert advice for pension planning on divorce for the client.  There are three main outcomes to this pension planning:

  • Pension offsetting.  This is where the pensions are valued but are not subjected to pension sharing or pension attachment.  So, for example, the wife may decide to keep a cash investment saved elsewhere during the marriage but leave the husband’s pension untouched.
  • Pension sharing order.  This is where a specific pension fund, or a number of funds, are split, along percentage lines.  So for example, the husband’s pension fund with Many a Muckle Assurance Ltd worth £100,000, is split so as to give the Wife 40% of the fund value.  The details are drawn up on a pension sharing annex and attached to the family court’s financial order on divorce.  The pension is split reasonably quickly, once the pension trustees have had time to implement the order (they have 4 months, in fact).  You can’t actually get your hands on the money, of course, it is hived off to create your own pension fund ready for your retirement.
  • Pension attachment order.  The pension fund is not split.  Instead an order specifies that a proportion of the pension fund’s benefit, when it pays out at the husband’s retirement, is paid to the wife.  Beware: the order dies with the husband so the income is lost to the wife. Ditto if she remarries.  This is only used by lawyers in pension planning on divorce in very specific circumstances.

I still come across cases where lawyers have neglected to pay enough attention to pension planning.  By way of example, they have neglected to obtain a value for the Additional State Pension for their client or the spouse on the other side.  You only need the modest little BR20 form to get this value.   Or they accept a pension scheme fund valuation for a final salary scheme instead of importing expert assistance to test the assumptions used in the valuation given.  The difference can run into tens of thousand of pounds.

But it is not just being savvy enough as a family lawyer to realise the valuation issues arising in pension planning on divorce.  The benefit, it seems to me, of making sure financial planning advice is obtained for a client is that they are guided on two key areas:

  • The need to continue to contribute to a pension fund after divorce – this is crucial.
  • The need for cash flow modelling from a financial planner during the divorce negotiations so that a specific income need allowing for pension payments after divorce is secured in a maintenance order before the divorce is finalised.

I brushed the dust off this post on pension planning (I have at least 10 draft posts lurking in the wings) when I read about recent research by the Phoenix Group on pension provision for women after divorce.  Some of the conclusions are worrying:

 

    • One in three divorced women don’t save any money at all
    • A staggering two in five (38%) have no idea what settlement they received after their divorce
    • Only 6% received pensions sharing order or a pension earmarking order 

All in all, this just reinforces the need for family lawyers to insist upon seeking pension planning advice on divorce for their clients.  Leaving it until after the divorce is simply too late.

Tags: , ,

Funding options in the absence of legal aid for family law

The forecast is dark clouds but it may become clearer

Funding options in the absence of legal aid for family law will be one of the more common concerns in my virtual postbag.  Legal Aid has largely disappeared for those wanting help from solicitors, legal executives or barristers who specialise in family law.  I consider the removal of legal aid for family law to be a terrible mistake.  The costs savings that will be trumpeted about by various ministers will be offset by the increased costs of other government departments such as the Ministry of Justice who will see further increases in Litigants in Person (LIPS).  A number of judges are now sounding the alarm bells about the delays (which means costs) in the court case lists attributed to LIPS turning up unprepared or unable to progress the case.

My purpose here is to list what limited provision remains for legal aid for family law matters and the funding options or alternatives there may be out there.

Legal Aid (remains of the day)

You can still obtain legal aid (provided you qualify on capital and income) in the following scenarios:

  1. If you are a victim of domestic violence.  You must be able to produce evidence of the domestic violence to your solicitor.
  2. If you have a child who is at risk of abuse from a partner.  Again, you must be able to give your solicitor evidence of the abuse.  Guidance has been published on the type of evidence at the Ministry of Justice website.
  3. If you and your partner agree to go to mediation.  You can also get some limited help from a solicitor outside the mediation process such as the drawing up of a consent order if the mediation is successful.  Unfortunately, mediation is not going to work for everyone.

Funding options in the absence of legal aid for family law

So what if you can’t get legal aid for family law?  What are the options?  In no particular order:

  1. Are you a member of a union?  Funding assistance may be available for members.
  2. Are you covered for legal assistance under your domestic household insurance?  Check the policy terms.
  3. Litigation loan funding.  There are specialist providers and your family lawyer should have the contacts to assess whether you can use such a facility.  However, you will pay interest on the loan and, ultimately, you will need some capital assets (such as property) in order to pay off the loan at the end of the case.
  4. Commercial lending from banks.  Unsecured loans generally available on the high street or online.
  5. Credit cards.  Another source of legal fees funding if all other commercial avenues are exhausted.  Fine in the short-term if the borrowing can be cleared in the settlement.
  6. Cashing in any existing investments.  There may be some savings accounts or ISA’s that could be utilised but do discuss with a lawyer first or an independent financial adviser.  Works if you have control over your own assets but not as good if the assets are joint and your partner wants to control your ability to get advice.
  7. Borrowing off family and friends.  More common than you might think. But ensure it is a ‘hard loan’ – one that must be paid back and is evidenced in writing.  If the loan is seen as ‘soft’ by your partner’s lawyers, they may argue it is not to be paid back and therefore you cannot count it in as a liability when deciding finances.
  8. A ‘Sear Tooth’ agreement.  This is a form of deed with your solicitors.  They will carry out the work for you if they believe that your settlement will be a reasonable one but the deed secures the costs of the legal fees against the settlement.  The usual scenario is that if a house is sold your lawyers recover their costs from the sale plus interest.  But the reality is that firms will only carry a handful of such arrangements at any one time.  They are risky for the lawyers because the settlement or court order may not be what was expected.   And there can be huge delays before the solicitors get paid even though they have no choice but to pay significant overheads each month such as staff wages and rent.
  9. A voluntary payment from your spouse or partner towards your legal fees.  Not as daft or improbable as it may sound.  Your lawyer picks up the ‘phone to your partner’s lawyer and says: “let’s be sensible, we don’t want to fight in court, give us some money to cover fees so we can explore a quick resolution.  We will give you a credit for it in the settlement”.  If the lawyers are sensible on both sides this can be quick and cost-effective.
  10. In the case of divorce or civil partnership financial orders: applying to the court for an order that your spouse or civil partner pays your legal fees. This used to be called an A v A application.  If you are married or a civil partner you can apply for interim financial help towards your outgoings called maintenance pending suit.  Part of this application could be for a ‘costs allowance’ to help you with your legal fees.  Various tests have to be satisfied (such as your inability to get commercial funding, legal aid or a Sear Tooth agreement with your solicitors).  A recent law change (which is not yet in force but which is imminent) will abolish the ‘cost allowance’ aspect and replace it with something called a Legal Services Order which will also go to meeting your legal fees.  Additionally, the court can provide an interim order for sale of real or personal property to provide the funds, if necessary, to meet the Legal Services Order.  (For years, matrimonial lawyers have argued that spouses should be able to apply for interim lump sum orders and interim orders for sale instead of having to wait until the end of a case. The power appears to have arrived at last, but strictly defined to only provide assistance with legal fees under the Legal Services Order).
  11. In the case of financial claims against your unmarried ex-partner on behalf of children under Schedule 1 of the Children Act 1989.  It is possible to seek interim lump sums on account of legal costs but certain tests have to be satisfied.

And a word about fixed fees.

I think that about wraps it up.  Remember that you must still ensure that you have a full discussion with your lawyer about how you can fund your case.  Make sure you ask for a written estimate of costs – or bands of costs depending upon likely outcomes.  Ask for fixed fee quotes which may be appropriate in some proceedings.  I keep reading various surveys that tell me the public demands fixed fees for all types of family work.

The public should be careful what it wishes for.  Fixed fees can be a good solution for some clients.  But guess what?  Sticking to an hourly rate with a carefully agreed plan of the work the solicitor will do and the work the client will carry out, can be cheaper. This is fashionably called unbundling nowadays. It is all about having a proper discussion at the start of the case.  I talk through budgeting plans and division of responsibility and work out whether a fixed fee or hourly rate is better for my client in every single case I take on. I fully explore all funding options.  And I put it in writing to them.

I think when people talk about fixed fees they want certainty about cost.  I absolutely understand that.  But I also think that some commentators are talking about fixed fees when they are actually meaning cheap fees.  And I suspect there will be a drive from some of the new entrants to family law – like Co-operative Legal Services – to offer lower fixed fees (like loss leaders) to bring in business.  That approach will only ever work on a commoditised basis.  This means the work may be dealt with by less qualified and less experienced staff.   Like my grandmother (and yours) always said: you get what you pay for.  That’s always been true.  So if you want to fly with Fixed Fee Family Airways, be my guest.  It may be fine for you but only make that decision after weighing up all the options.

Tags: , ,

How to find the best family lawyer

I need somebody. And not just anybody…

How to find the best family lawyer

Court proceedings, whether in divorce, civil partnership or involving children, are stressful. (Just to state the bleeding bloody obvious).  A family law matter is rendered even harder if the solicitor you have instructed does not exactly fill you with confidence.  Even worse is the prospect of having to turn up at court (a potentially intimidating experience for anyone) when your stomach is doing back flips and you don’t feel your legal representative is fully in command of their brief.  So I want to share my thoughts on how to find the best family lawyer.

I have huge sympathy for those lawyers who still offer public funded (legal aid) family work.  Their caseloads are huge.  Their clients are anxious.  The law is not rendered any less complex just because your client is on legal aid.  Most of the time, the pressure is so intense, that the best you can do is to constantly ‘firefight’.  The firm’s overheads are just as high as the private law firm down the road but the legal aid family law firm gets paid only a fraction of the fees that private firms will demand.  Family lawyer burnout is a sad reality.

And so to the virtual postbag…

Which contains this plea from M:

I really need some help. I am petrified my solicitor is not worth their salt as I am struggling alot with the E1 form and not getting a hold my hand experience. I have seen they are not listed on the Resolution.org site and my ex is taking me to court in three weeks. I am legal aid funded and have been with this same solicitor throughout a two year ordeal, trying to also be a full time mummy.  It may be complete paralysing fear…..but I have now heard some bad comments from a Domestic Violence Support group I have been attending about my solicitor. I would be grateful for any help! Thank you.

M later clarified that Resolution had confirmed that her solicitor was a Resolution member.  My first reaction upon seeing M’s predicament was that she should immediately contact her solicitor and explain her concerns.  If I was M’s solicitor, I would want to know if one of my clients felt so desperately anxious  about their situation.  It is rather surprising to see that M’s case has been going for two years. M refers to an impending court hearing and the need to complete a Form E1.  I am therefore assuming that M was not married to her ex-partner but that they had a child or children together and that the impending court hearing is in relation to a Children Act (Schedule 1) case. Such cases allow applications for periodical payment, lump sum orders and property adjustment orders on behalf of a child or children of parents who are not married or in a civil partnership.

I do not know the details of M’s case and therefore know better than to comment any further but I can understand how the prospect of changing solicitors in the middle of court proceedings will be daunting.  However, if M gives her solicitor a chance to make her feel that there is a clear game plan for her case then she may have the assurance she seeks.  The Form E1 is a much reduced version of the full Form E (used by married couples in divorce proceedings).  Form E1 tends to require factual information only like income and liabilities whereas Form E has narrative sections at the end which present a great opportunity to present your case well or a blissfully ignorant way to ruin it.

So, for M, I think she needs to meet with her solicitor to make sure her Form E1 is up to scratch.  It will be for her solicitor (or perhaps, her barrister) at the hearing to explain to the court what M and her child/children wish to achieve.  Because Form E1 does not have the narrative boxes to explain the salient points of a case (an oversight in the design of these forms, in my humble view) I would normally provide the court with a chronology of key events and a summary or position statement on M’s behalf so the court (and M’s ex) is fully aware of the relevant issues in the case.

There may be all sorts of reasons why M’s solicitor hasn’t had the time to make M feel looked after. If M feels that the explanation provided is unsatisfactory then she should say so and her solicitor should deal with the matter as a complaint and seek to resolve M’s dissatisfaction.  If M feels the proposed solution is not good enough or if she progresses to the hearing and still feels that she is not receiving a proper service then she should approach another firm (it will need to be one that offers legal aid) to see if they feel able to take it over.  Although this transfer will require the permission of the Legal Services Commission who administer the legal aid pursestrings.  There should be time between this forthcoming hearing and the next one to change legal firms if that remains M’s wish.  I wish her well.

Choosing a new solicitor

I do appreciate how hard it can be to identify a good solicitor when you may not have a recommendation to act upon.  I know that there are plenty of online  legal directories springing up that claim to have the details of the finest lawyers around.  Most of these directories, especially the ones that pop up after a Google search are… how can I put this? Shite.  Yes, that about sums them up.  I am asked all the time how people can work out who are the really good family lawyers.  I was asked so many times that I committed my thoughts to an eBook, imaginatively titled: How to find the best Family Lawyers.  My eBook is free to anyone who cares to subscribe to my blog, using one on those sign-up boxes that lurk around the edges of the page or pop up when you least expect it. Go on, subscribe.  Knock yourself out.

Tags: , , ,

The DWP App

The Department for Work and Pensions (DWP) launched an app at the end of November 2012.  The app is intended to provide assistance to people who are struggling with the issues that arise on relationship breakdown: divorce, child support and so on.   I think the app is the delivery of an initiative announced in July of this year when the press reports talked of a ‘Divorce App’ and the figure of £14M budget spend was bandied around.   I questioned then why £14M was needed for an app.  I now understand the spend was closer to £300,000.  Quite a come-down.

I had a bit of a go in that previous post, unhappy as I was with the brutal staff cuts to the court system and the planned withdrawal of most family legal aid in April of 2013.  My bad humour is not dispelled by the ‘Sorting out Separation’ app now hosted by the DWP.  I’m all for helpful guidance but placing impossible obstacles in the way of access to justice turns me into Mr Angry.  For one beautiful moment, back when the app was launched in November, I saw a link to MailOnline about the app that seemed to share my anger.  At last, I thought, one of the press big beasts has woken up to the threat posed by the withdrawal of legal aid and the insulting attempt to fill the impending void with an app.  Fortunately, natural order was restored once I read the article and realised that the Daily Mail was angry, as usual, for all the wrong reasons.  It was just the usual piece about how getting a divorce or separating was being made even easier.  Strangely enough, most of the readers of this blog seem to find the exact opposite: sorting it out is expensive, complicated and deeply stressful.

 

However….

However, I have allowed myself to be distracted.  Since my blog is intended to be helpful to the very people who will be most affected by public provision cuts, I have decided to give the DWP’s shiny new app a fair crack of the whip.

STOP PRESS: THE DWP ENCOURAGES GOOD BOY SCOUTS LIKE ME TO EMBED THE APP ON THEIR SITES.  THIS I DULY DID AFTER SPENDING HOURS WORKING OUT HOW TO DO IT.  UNFORTUNATELY, GOOGLE THEN DETECTED THE APP AND DECIDED THAT MY INNOCENT BLOG WOULD INFECT ANY VISITORS WITH MALWARE. MY TRAFFIC FELL OFF A CLIFF. THANK YOU DWP. SO I HAVE REMOVED IT. IF YOU WANT TO USE THE APP PLEASE GOOGLE IT AND YOU’LL FIND IT SOON ENOUGH.

Good luck and let me (and others) know if the Sorting out Separation app is worth the money we taxpayers have just spent on it.

Tags: , , , , ,

 

All the fun of the (un)Fair

I have written before about the difficulties encountered by self-reppers when trying to deal with the court system.  The courts are braced for a significant rise in the number of litigants in person when legal aid is removed from the grasp of most people requiring family law help in April 2013.

The spotlight will be on the courts (and judges in particular) to see how the reasonable demands of access to justice from the growing band of self-reppers will be met from the dwindling resources at the court system’s disposal.  There have already been severe cuts to the number of court staff.  I could wheel out some stats at this point but the reality on the ground says it all.  Most courts have public counters.  This is where you go if you need to grab some court forms or hand in court papers.  They used to be open to the general public from 10 in the morning until 4 in the afternoon.  There might sometimes be a bit of queue but there appeared to be enough staff around, hiding behind the screens, to come and help when things got busy.  Not any more.  Most courts now have restricted opening hours for their public counters.  My local court operates on half days.  If you want to issue a document and it is not screamingly urgent, then hard luck.

But what about the experience in court itself?  In a recent case in the Court of Appeal,  Lord Justice Kay, vice-president of the Court of Appeal, said that a particular self-repper’s lack of legal understanding did not entitle him to ‘extra indulgence’.  The Judge went on to say: ‘It seems to me that, on any view, the fact that a litigant in person “did not really understand” or “did not appreciate” the procedural courses open to him for months does not entitle him to extra indulgence.’

Having had a quick glance through the judgment it does appear that this particular self-repper had taken a few liberties.  But such cases are going to crop up in increasing numbers as we head into the economically austere, non-legal aid future.  This case prompted me to think about my own experiences with self-reppers.  My reflection was sharpened by the editorial comment in my professions’s trade mag: The Law Society Gazette which said about the case:

The finding will comfort solicitors facing a soaring number of self-represented opponents.

Unfortunately, I find little comfort in the finding.  I have represented clients whose ex-partners were self-repping.  Some of those people could have afforded legal representation.  Some could not.  Certain individuals were perfectly pleasant and decent and I tried to help them as much as I could without overstepping my own professional boundaries.  Other individuals had what I can only describe as ‘issues’.

Those issues used to be in relation to my client, usually in a divorce, but as the case went on, those issues would magically transfer themselves to me. Before long, I was the villain: lying to the judge; destroying a perfectly happy family; morally bankrupt; financially grasping; without a single shred of human decency or understanding.  In case I was too thick to get the message I could often rely upon the self-repper’s extended family to helpfully shout out my failings at the next court hearing.

If you have both parties legally represented then, in most cases, you can concentrate on the issues that the judge will consider relevant.  But more than that, a lawyer can help, constructively and patiently, to manage a client’s expectations of what can be acheived.  So, those self-reppers in the past who hated my guts could have had their own lawyer explain that I really wasn’t out to destroy them.  All that time and energy distrusting every word I said or letter I wrote just hopelessly, and sadly, prolonged the whole shouting match.  And don’t forget that my own client in this scenario, paying for my legal advice, ends up paying a whole lot more because their self-repping ex needs, at best, to have everything explained to them, and at worst, just wants to be as bloody-minded as possible to keep those bills racking up.

But despite some pretty horrible experiences with one or two self-reppers who had these proverbial ‘issues’ with the cut of my jib, I find myself largely sympathetic to the plight of litigants in person.  How do you make sense of a legal code or procedure that some lawyers struggle to understand?  I once jokingly quoted a small section of the costs rules in a previous blog from the Practice Direction accompanying Part 28 of the Family Proceedings Rules (FPR 2010). This states:

Rule 28.2 provides that subject to rule 28.3 of the FPR and to paragraph (2) of rule 28.2, Parts 43, 44 (except rules 44.3(2) and (3), 44.9 to 44.12C, 44.13(1A) and (1B) and 44.18 to 20), 47 and 48 and rule 45.6 of the CPR apply to costs in family proceedings with the modifications listed in rule 28.2(1)(a) to (d).

I mean, for Christ’s sake, how are self-reppers meant to get their non-legal melons around that one?

And, in the interests of fairness, whilst most solicitors have a few horror stories about self-reppers, the legal profession does not always cover itself in glory.  I must not say anything to bring the legal profession into disrepute and I wouldn’t dream of doing so.  I will only observe that there are some members of the legal profession who are tossers misunderstood, with egotistical extrovert personalities who are  arrogant forthright, long-winded articulate, and utterly pompous possessed of remarkable gravitas.

Since this blog is intentionally aimed at the public, rather than my friends and peers in the legal profession, I know that a fair few self-reppers visit my site, so I would be interested to hear their views in the comments section below.

Tags:

Divorce Finance Toolkit App post

‘Appy Days ahead?

I read with interest the news that the UK Government has committed £14M of funds towards the development of an App that will assist divorcing spouses and separating couples, especially in relation to child care after parting.

I’m all for new technology if it empowers people who would otherwise struggle to afford the fees of divorce lawyers.  And yet, I can’t help wondering why it will cost £14M to develop such an App.  Sure, the quality of the content has to be there and that won’t be cheap.  What’s more,  the App developers may be kept busy building in some useful tools and calculators and that will cost a few bob.  But £14M?  Really?

I suspect, as usual, the news may have been spun too much or has suffered from mis-reporting.  If this initiative is to have a £14M price tag, i expect that the British public will find themselves treated to a website of information, online tools, some half-decent signposting to other resources AND AN APP thrown in because that is the sort of sexy thing we all like on our iPhone and Android devices.  (And Blackberries… if they’re still making them).

If that is the case, then I wonder: why bother?  There are a number of perfectly good websites in existence offering quality information and some excellent financial tools: I have listed them here.  An app is fine but a fully functioning website is better.  A fully functioning website is delightful, but a properly funded family justice system is simply splendid.

Now I come to think of it, if you deduct the tens of millions saved from the planned withdrawal of legal aid from the majority of family law cases and the tens of millions already slashed from the court budgets, £14M  on an App starts to look like a PR stunt.   Of course I know these are times of austerity, so the UK Treasury has to be tighter than a shark’s arse in a power dive, but I had envisaged helpful Apps to be a contribution from the entrepreneurial private sector, not a replacement for core, State-funded services.

Tags: ,

Divorcefinancetoolkit

I’ve been practising family law for some time now and there is one aspect of the divorce process in the English jurisdiction that I have never understood.  This is the requirement for one spouse to blame the other spouse entirely for the breakdown of the marriage. There is the option to wait for a period of at least two years of separation and not plead fault but most people, once they accept that a marriage is over, want to sort out the divorce as quickly as possible.  It means that, even in the most amicable of divorces, one spouse must portray themselves as the Saint and one must be cast as the Sinner.

So, for example, the wife (the Petitioner) who lodges the divorce petition cannot, for instance, say about the Respondent husband :

The Petitioner likes the matrimonial home to be tidy.  Really tidy.  The Petitioner has always been like this since she was a little girl.  Unfortunately, the Respondent is a bit of a slob.  He leaves his underpants on the bedroom floor.  The Petitioner finds this really annoying and just cannot let it go without comment which often leads to arguments and bad feeling. Sometimes the kids will hear these arguments and both the Petitioner and Respondent will feel bad about this afterwards.  The Respondent will often point out to the Petitioner that leaving his underpants on the bedroom floor is hardly criminal  in the scheme of things.  The Respondent will say to the Petitioner: “I work hard, I don’t gamble, I don’t drink (much), I don’t have affairs, and I think the kids really love me.  Can’t you just learn to live with the fact that I leave my underpants on the bedroom floor?  Your obsessive neatness drives me nuts!”  Unfortunately, the Petitioner cannot live like this and she has gone to counselling and been told she has OCD issues but that is just the way it is.  The Petitioner knows deep down that the Respondent is actually quite nice, even though he is an awful slob, and is a good father but concludes it is probably a sad case of ‘six of one and half a dozen of the other’.”

Instead, the Wife must say something like this:

The Petitioner ensures at all times that the matrimonial home is a pleasant and welcoming environment.  She will go to great lenghts to ensure high levels of cleanliness and order throughout every part of the home. The Respondent deliberately leaves his underpants on the bedroom floor despite knowing full well the profoundly negative impact of such behaviour on the Petitioner including: emotional distress, lack of sleep,  mental anguish, and loss of libido.  These episodes occur nightly and when the Petitioner requests that the Respondent modify his behaviour by placing his underwear in the appropriate storage facility, she is met by the Respondent’s raised voice and his attempts to diminish the importance of his malfeasance which in itself is designed to undermine the Petitioner’s self-esteem and has caused her to require extensive counselling.  The children overhear the Respondent’s raised voice and the Petitioner is very worried about the effect this is having on the children.

The problems with requiring the alleging of fault in such uncompromising terms are, in my view, as follows:

  1. Family lawyers are often being bashed over the head for being adversarial and aggressive.  They do this, say their many critics, to inflate their fees by promoting bad feeling between the parties and thereby delaying settlement.  And yet, the law requires one spouse to start the divorce process by putting the boot into the other.  Is it any wonder that the other spouse responds in kind?
  2. When the spouses are required to start the process by thinking in terms of ‘fault’ it can make it difficult to encourage them to think more positively about their future roles and responsibilities in bringing up their children.  The battle lines have often been drawn at the divorce petition stage.  The children are going to suffer as a result.
  3. Once you get off to a bad start in the divorce petition, which often includes reference to financial mishandling or control, it is hard to get spouses to drop their mistrust and identify grounds for common interests and agreement on financial matters.  This greatly increases the costs of settling.
  4. The UK government has recently put its weight behind the promotion of mediation to resolve family disputes upon divorce and separation.  Please show me one mediator who starts off the mediation process by asking: “Right, just so I can get my bearings, which one of you is to blame for all of this?”  If the UK government want to shape public policy on the adoption of mediation and collaborative law, it needs to amend the divorce legislation pretty damn quick.
  5. On a broader level, it seems to me to deny to spouses the dignity they should be accorded by the law which is to accept in many cases that a marriage has come to an end and two sensible people, in possession of all their faculties recognise it is not the sole fault of one person.  Why should a couple who are capable of an amicable parting be required to regress to the adversarial behaviour and language of the school playground in the divorce petition?

I am aware that some of the defenders of fault-based divorce may fear that it will become too easy to divorce and that the institution of marriage will be somehow undermined if fault is removed.  My solution would be to keep fault-based divorce for those cases where it is felt appropriate to plead bad behaviour.  But, for those spouses who want an amicable process; for those lawyers who wish to promote non-adversarial models of dispute resolution; for those critics who think lawyers sow marital discord in order to line their own pockets, please give us the option to select a no-fault divorce.

Tags: ,

Divorce Finance Toolkit

Errr.... the legal landscape

I have looked into my legal crystal ball before, attempting to guess the direction of the legal services market.  Big changes are afoot and clients (should I say, consumers, now) may find themselves between the Devil and the Deep Blue Sea.  The Devil is the Government’s determination to ditch legal aid for most family law cases, and the Deep Blue Sea is the Legal Services Act 2009, which shakes up the traditional practices of law and will allow non-lawyers to offer legal services.

Like most people, my mood changes from day to day.  If I was feeling a little down I might say the twin impact of these changes could be likened to the Government picking up the legal services market by its heels, giving it a good old slap on the arse, throwing it onto the deck, sticking the boot in several times, standing back and then positively encouraging a couple of passing corporate spivs to bend down and pick its pockets.

If I was feeling more upbeat, I might look for the good things that can emerge in a period of transition, even if that transition is quite a violent one and initiated with malice aforethought by the present Government. So, with my positive hat on I note with interest a relatively new website called Intelligent Divorce.  The whole premise is to allow clients (consumers) direct access to quality legal advice so that a legal opinion upon the likely financial settlement can be obtained at an early stage and, hopefully, avoid the pain and costs of litigation.  I particularly like the fact that a couple can use the service jointly which will, of course, greatly increase the prospect of agreement and settlement.

Although the costs of the service may, at first blush, appear expensive to someone who has been running around getting free half-hour interviews with local solicitors, I would just repeat three words already used above: “quality legal advice”.  Such advice does not come cheaply but the clever use of technology, allowing the service users to populate the information forms used to obtain the advice, cuts down the costs sigificantly.  Compared to full-blown litigation, the quoted costs for Intelligent Divorce are something of a bargain.

As the legal services market continues to fragment, there will be opportunities for clients to effect some costs savings by shopping around, in the virtual, online world as well as the real one.  And perhaps combining the services of a number of different providers: for example,  an online divorce petition combined with elements of self-help and then some face-to-face legal advice if the going gets sticky.  There will be room for solutions like Intelligent Divorce.

Disclaimer: I know the founders of Intelligent Divorce on a professional level.  I therefore know them to be excellent family lawyers.  However, I have no personal financial interest in their offering and will not benefit in any way from readers of my blog using the services of Intelligent Divorce.

Tags: ,

Newer entries »