Going to court to decide your divorce

September 10, 2019

Tags:

One of the processes that you can use to resolve the issues in your divorce, be they financial issues or issues about your children, is going to court or “litigation”. In this article Family Law in Partnership director James Pirrie examines the benefits of using the court process to help you and your partner to settle the disagreements between you. 

Going to court or litigation can be used as a powerful tool in reaching agreements on a divorce or separation. So what are the advantages of using this process?

  1. Timeframe and progress: Litigation provides a set timeline and – broadly – insists on each party engaging with the process and delivering key information by set dates: it is highly effective at ensuring engagement if there has been none before.
  2. Disclosure: The court process is deeply concerned with disclosure: whilst the decision that the court might impose at the end of the day is all about ‘broad-brush’ the disclosure insisted on at the start of the court process is very picky indeed:
    1. a full account of what exists is required;
    2. each line on the asset schedule must generally be backed by documentation;
    3. and there is a measure of historic analysis permitted too, so as to permit tracking down missing resources.
  3. Dealing with difficulty:It can get rid of contentious issues quickly and easily:
    1. If you can’t reach agreement about the value of your property or company or the application of tax or earning capacity, then (provided you can convince the court of the necessity) you can appoint an expert to – in large measure – determine the issue.
  4. The FDR: This is otherwise known as the Financial Dispute Resolution hearing:
    1. FDR stands for “financial dispute resolution”.
    2. It is the second of usually three visits to court when the Judge “steps out” and seeks to help the parties, further assisted by their lawyers, to reach an agreement.
    3. It might arrive perhaps 6-9 months into the court process and by the end of it, you are likely to have spent 50% of your total costs in the litigation.

The judge hears no evidence and often is given only a very “high level” summary of the figures and the situation generally but seeks to guide the parties as to where solution might lie. It is a very powerful stage and in many cases will result in an agreement, because:

  1. Much of the eventual information that the court will have is gathered and the parties each have their advisers in the room. They should each be equipped with a decent estimate of what will happen at the end of the day.
  2. If each side is properly advised (and hears that advice), there will often [usually] be less between them than the costs that will be incurred from that point to the end of the case: there is therefore a logic to doing the deal: even a pretty poor outcome (so far as each side is concerned) should leave them better off than carrying on with the litigation.
  3. If one side is not being properly advised (or not listening to the advice) then all being well, the Judge is there to put them right.

Ultimately though this can feel like a card game with each side seeking to convince the other of the strength of their hand in the litigation as they seek to get the Judge onside, to add weight to their arguments and each side will face the choice – to twist (or more accurately “buy” at a cost that will broadly double their spend in the litigation, by the time that they get to the end of the case) OR do a deal.

The key elements in the frame are probably going to stretch only as far as:

  • Total realisable assets
  • Incomes and earning capacities
  • Mortgage capacities
  • Housing needs
  • Spending needs

Having a well thought through and rock solid case on these elements can put you in a strong position.

SO significant elements in the mix are going to be:

  • How effective you have been in controlling your costs: if your costs are lower then the prospect of litigating further will be less scary for you (and the other side will know this).
  • The clarity and simplicity of your case – and whether you have convinced this judge of its merits. (This judge will not be dealing with the final hearing but his/her views will be a good marker as regards whether you have created an effective presentation).
  • Whether your case feels in order  – whether there have been slips that need repair – how much work remains to be done and how intrusive that will be in your life.
  • The confidence you have in your adviser and in their guidance, your capacity to deal with risk and to manage this process well. It will be crucial, by the time of the hearing, that you feel in a strong partnership with those advising you.  If you are still not on board with the case that they say that they can run for you then the energy you need to deal with the other side is likely to dissipate in your team discussions.
  1. Learning points from the above: This may be crude. It may have more to do with appearance than reality. It is more horse-trade than legal analysis – but if you know that this is what is going to happen, you are already streets ahead in terms of how to manage your case.  Things that you will realise include that:
    1. The barrister is not presenting your case at the FDR but the law’s version of your case – things that you may think are important may actually need to be ignored and things that seem irrelevant may be centre stage: barristers know what works for the Judge and you will be wise to be led by them.
    2. In reality there are very few certainties.
    3. That starting out early has much to commend it (if it takes 6-9 months to get to the point of having an FDR then staking your place in the court queue early is likely to be a sensible step).
    4. Being well supported on the day is very important – you probably only have one shot at this.
    5. Minimising your costs getting to this stage will be very helpful indeed – as will porridge (or whatever is your preference) on the day: it is often about who has preserved their energy best during the day to manage the negotiations at the close who will feel they have done best.
    6. In a discretionary regime you will need to be careful about your presentation and disclosure – be meticulous: it is easy to give the other side ‘easy wins’ that enable them to paint your case to disadvantage.
    7. But the wise litigant will run their case to encapsulate what is needed at the FDR stage .. further work will be needed if the case is going all the way – but it is likely to be better to push out expensive work over the detail until after the FDR if possible.
    8. Finally at the FDR, what really matters is the other side’s assessment of   1.your case and 2.their own case … (and of course their assessment – guess – of how you are assessing your case).  To describe this as a ‘crude and over-priced game’ fails to recognise the complexity of what is likely to be engaged as the FDR unrolls (and ignores that in the absence of your both agreeing a different approach, it is the only game available).

At Family Law in Partnership we are experts in divorce litigation as well as the full range of other process options – mediation, collaborative practice, arbitration and solicitor led negotiations. We use our skills across the full range of these process options to help you to resolve the issues arising from your divorce or separation. For further information on how we can help you, contact any of our top London divorce and family lawyers at T: 020 7420 5000 or E: hello@flip.co.uk