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Form e financial disclosure

As we discovered just before Christmas, the online divorce Form E provided on the Court website was faulty.  It appears a section of the Form which summarises, amongst other things, the capital and income of divorcing couples, failed to carry forward the liabilities from an earlier section.  The result was that the net capital values produced in the summary section may have been falsely inflated by missing out any liabilities.

The person who claims to have noticed the error (a self-styled family expert)  used the publicity to criticise solicitors, barristers and judges for not having noticed it themselves.   This fed into the usual lawyer-bashing on public forums and comment pages.  Most family lawyers were taken aback by this particular slew of criticism because:

  • It is the Court service’s form, so nothing to do with lawyers;
  • 99% of family lawyers don’t use the court’s online Form E as we pay to have our own software;
  • Family lawyers pay no attention to the summary page of the Form E anyway as it is not helpfully laid out and does little to aid understanding;
  • The Form E financial information is quickly superceded by later rounds of  financial disclosure any way;
  • Family lawyers tend to reproduce the Form E information in separate Excel spread sheets (to model likely settlement options) so any error would be quickly spotted.

In short, although I have not been slow to have a pop at my fellow lawyers on the pages of this blog, I did think this particular story, as a vehicle to slag off family lawyers, was a bum rap.

The real story is that LiPs have been let down.   These people, the vast majority of this blog’s readership, cannot afford legal advice or struggle to maintain paid legal representation.  I’m guessing it would be LiPs in the main who would have been using the Court service online Form E.  I mean: it’s there to use, it’s free, and it’s on the official court website, so it must be safe to use, right?  Right?

The Minister responsible issued a statement to Parliament: “Update on investigation into faulty online form used in divorce proceedings”.  We now know the number of people likely to have been affected:

A total of 36,527 cases contain a version of Form E filed from these periods. HMCTS staff have now reviewed all these cases and found that 3,638 files – 10% – contained the faulty calculator version of Form E with an incorrect figure for net assets figure in the summary table.

1,403 of these cases are still live, allowing HMCTS to intervene immediately to clearly flag these cases to the courts in order to avoid the error affecting the final orders in these cases.

The remaining 2,235 files – 6.1% – were closed cases….I have instructed HMCTS to write to all parties in the 2,235 closed cases. The letter expresses our sincere regret for the error, sets out what happened and explains that, although Form E is just one part of the evidence used in their case, there remains a possibility that the error affected the final outcome.”

If you are one of the people with a closed case receiving a letter from the court service you will need to work out whether you may have been prejudiced by the software error.  Apparently, the letter sets out the options available for those parties who think they have been adversely affected, which includes seeking to set aside any final order made or varying such an order.  The letter also contains a link to a specific court form to be used by those who wish to set aside or vary their settlements.  If anyone has received such a letter or has the link I would be happy to post a copy (suitably anonymised) on this blog.

If there is anyone out there who thinks they are affected but has not yet contacted the court to register their concerns then please use the specially designated email address:  [email protected].  Only 51 people have done so as at 21 January 2016.

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I put up a post recently about Dispute Resolution Week: please read it here.   This takes place, as I type, in various forms and guises across the country all this week.  The aim: to promote alternatives to the adversarial court process for people with family law disputes.

Resolution is the organisation behind the initiative, driven in many different ways by the members of Resolution: lawyers, mediators, collaborative practitioners and other professionals who are committed to keeping families out of court.

I’ve posted a video from Resolution below telling you all about the Dispute Resolution Week initiative.

I’ve got my hands on some great video content dealing with collaborative law  courtesy of my local collaborative group called Brightpod and I’ll post that just as soon as I can.

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you can still get legal aid for mediation

You can still get legal aid for mediation

 

I reminded my readers not so long back that you can still get legal aid for mediation in family law cases.  Legal aid in family law has been cut to the bone.

The government took a big axe to civil legal aid in April this year so you might think they would at least provide some publicity for those areas of legal aid still left, battered and bruised though they may be.  Well, I’m sure the Ministry of Justice is doing a grand job.  So grand it has completely passed me by (and I am the sort of person looking out for these crumbs of comfort from the caring sharing coalition government.

Fortunate then that I came across the truly grand poster prepared by the Legal Aid Practitioners Group (LAPG).  My interest is in legal aid in family law and the poster covers that. But fair do’s to the CPAG for listing every last circumstance in which civil legal aid might still be available.  Good on yer.

 

Click on the link below to see the poster.

 

LAPG Legal Aid poster

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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.

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Form A – Notice of intention to proceed with an application for a financial order

Form A (for dismissal purposes only)

Form A is the document used to start a financial claim in divorce or civil partnership proceedings.  A fair amount of confusion appears to arise when solicitors ask their clients or the self-repping ex-partners of their clients to complete and return a Form A for dismissal purposes only.

Layla recently asked me:

My ex husband and I have been asked to provide a form for dismissal purposes only as we are not seeking a financial settlement do we have to complete one?

Well, I’m not sure who is asking Layla to provide a form but it is likely to be a Form A (pictured above).  This is the form used in divorce proceedings in the Principal Registry or county courts.  If the financial claims are not arising within divorce proceedings, such as Schedule I financial claims under the Children Act 1989, then Form A1 is used.  Any financial claim in the Magistrates’ Court uses Form A2.

Layla refers to neither her or her ex-husband seeking a financial settlement.  Just to be clear: even if Layla and her ex are dismissing all financial claims between them this is still ‘a settlement’.  So, I’m guessing that Layla and her ex have also just negotiated and signed a consent order.

Why Form A (for dismissal purposes only)?

When a Petitioner in divorce files his or her divorce petition, they complete (or should complete!) a page at the back ticking the boxes of various financial claims.  The divorce petition then proceeds through the court and, hopefully, a financial settlement is agreed which results in a document called a consent order.  This consent order, once agreed and signed by the parties is submitted to the court for approval by a judge.  At this point, the only party who has indicated any intention to apply for a financial order is the Petitioner at the back of the divorce petition.  The Court has not yet heard anything from the Respondent about the financial claims they may wish to make.

So, family lawyers simply ask the Respondent to complete a Form A (so that person is opening up their financial claims) but to mark across the top of the Form A “FOR DISMISSAL PURPOSES ONLY”.  This Form A accompanies the consent order to the Court and is a signal to the judge that the Respondent’s financial claims are limited to the terms of the consent order for which approval is sought.

For many years, the courts only seemed to require Form A (for dismissal purposes only) from a Respondent spouse but of late, it has become prudent to also ask the Petitioner to complete a Form A (for dismissal purposes).

The procedure

As for the procedure to lodge the consent order, there can be slight variations between the courts but you will probably need to:

1. Provide two copies of the draft order (that is, two unsigned copies) and a third version which is signed by both parties and any legal advisers who are providing representation;

2. A statement of information form (one for each party). The form can be filled out online or printed off for completion at leisure by visiting http://hmctsformfinder.justice.gov.uk/courtfinder/forms/d081-eng.pdffor If this link does not work then visit the Justice.gov.uk website, go to the Form finder search box and type in Form D81.

3. The appropriate fee – which is, at time of typing, £45.00.

4. Form A, for both parties, which must be completed and then have written across the top “dismissal purposes only”. You can find the Form A, if this link works, at http://hmctsformfinder.justice.gov.uk/courtfinder/forms/form-a-eng.pdf. If the link does not work then go to the Justice.gov.uk website again and type Form A into the form finder search box.

I hope that helps.  Good luck.

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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.

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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.

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Image by @Williamslegal

There can hardly be a family lawyer in the land who has not shivered with horror at the news that one of their letters of client advice, containing deeply personal and confidential information, has fallen into the hands of their client’s other half.  How could this have happened?  And what could have been done to prevent it happening in the first place?  I suspect that nowadays, it is more likely to be an email that has been compromised rather than a letter.

Adios snail mail

It is often the case that advice will be sought whilst a client is still living with their spouse or partner in the same property. A problem arises when the solicitor wishes to confirm the advice given in writing. In the days when snail mail was the only option, it was often agreed that the post would be sent to a trusted third party rather than to the client’s home address. The use of e-mail, which has the benefit of speed, is often requested by clients still sharing a property with the person from whom they wish to separate.  Even if the parties have separated, it may be the case that the departed spouse comes back from time to time to pick up post, or possessions.  These visits may occur when the occupying spouse is absent.  It strikes me that sending an e-mail to a client’s email account, which will be accessed from a shared computer  in the matrimonial home is as dangerous as sending a hardcopy letter to the home bearing the legend “DEEPLY PERSONAL AND CONFIDENTIAL LEGAL ADVICE FROM YOUR DIVORCE SOLICITOR”.  In fact, it is probably easier for a client’s partner to stumble across and read a confidential e-mail from a lawyer (and then then hit “Mark as unread”) than it is to steam open a hardcopy letter before glueing the envelope back down.

Clouds in my coffee

It is imperative in most family law situations, (the possible exception being the collaborative law model) that communications between solicitors and clients are kept private.  Confidentiality is key.  How can a client discuss matters of importance with candour and expect equally candid advice if such communications are likely to be intercepted and compromised?  So, what can you do to retain the benefits of electronic communication whilst maximising its security and confidentiality?

Try these tips:

  1. If you want to receive email communication to your home on a shared computer then consider setting up your own user account that you log into and out of when the computer is on.  This will require a password.  This is relatively secure but may be overridden if you are not the person who set up the computer in the first place – often known as the Administrator.
  2. Go a step further and open an email account with a hosted e-mail provider (in what is colloquially called The Cloud). GMail is just one example.  Set your username, password, and security questions, and do not reveal them to anybody else. Do not leave these details written down. If you absolutely must keep a record of the account information for fear of forgetting the passwords, then consider retaining the information on your smart phone, if you have one, but heed the next tip.
  3. Ensure that you have a pin code on your smart phone, laptop or tablet to prevent your spouse or partner accessing these details when you are not around.
  4. You can then give this hosted e-mail account to your solicitor. The e-mail communications will not appear on your home PC provided you have not set up a forwarding facility on to a conventional e-mail account that can be accessed at home.
  5. When setting up a hosted email account you will often have to provide a pre-existing email address.  This is likely to be your email account in the shared home.  A validation email will be sent from the hosted account to your existing email account as part of the set – up process.  Once this has arrived, deal with any action required but then immediately delete the welcoming email  it (and then delete again from the trash folder).  This will prevent your partner being aware that you have an additional email account.
  6. Such cloud services offer more than just email.  If your solicitor has sent you draft letters or settlement options for consideration, you can retain them in the cloud, amend them and then send back to your solicitor.  You need not ever print off a document that could be inadvertently read by your partner. You can therefore have a complete set of correspondence from your solicitor which you will retain online rather than having a printed file of documentation which could fall into the wrong hands. As an alternative to  the online storage solutions offered by Google, you could consider opening a Dropbox account which, to my personal taste, is a more elegant and functional solution than Google Docs.
  7. Before you login to your hosted e-mail account, see if you can select “Private Browsing” in your Internet browser.   This prevents a record of your browsing history (including your visits to a hosted email account) being created on your home PC.  Alternatively, when you log out of a browsing session, you can delete the browsing history. This would prevent a suspicious partner from looking at the recently browsed or accessed webpages and deducing that you have a private e-mail account even if they cannot access it.

The phenomenal growth in the smart phone market, now complemented by the astonishing popularity of the Apple iPad and Apple’s competitors rushing to also grab a slice of the tablet market, has freed us from the shackles of a desk-bound computer.  We can access emails and documents from just about anywhere on a number of electronic devices.  Family lawyers must be more flexible about the ways in which they balance their clients’ demands to be kept informed with their competing right to confidentiality.

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