#3 in a series of commentaries from the family law Courtroom. No names obviously, but a focus on the mechanics of many cases, which illustrate the many “routes to goal” available to the experienced family lawyer, seeking the most efficient and economic solution for their client.
FACT: A financial application to court in divorce proceedings does not lead to a contested trial in the vast majority of cases.
Elizabeth felt forced to take court proceedings against her husband, David, due to her complete lack of knowledge of the family, finances, and his controlling attitude, which meant that she was understandably unwilling to go to mediation. Nevertheless, once a comprehensive and clear disclosure of finances had been achieved through the court process, which did not involve her in any court hearings, negotiation between solicitors achieved the consent order that both parties wished, without any need to attend court.
Elizabeth was hugely relieved, particularly because David had accused her of being unnecessarily aggressive when she started proceedings, which was never her intention.
That’s just one example of how court proceedings can be used to clarify finances and set a timetable around which you can and should continue to negotiate.
If you can make an agreement, because both of you know everything about the finances, you trust each other, and perhaps use a mediator to help you conclude a settlement, that is the easiest way forward.
But for many people that is simply impossible.
They may not know or understand anything about finances, particularly if businesses or complex asset structures are involved, there may have been domestic abuse, and there may be other reasons why trust no longer exists.
And so they start proceedings in court, but this does not have to mean that the case will have to be decided by a judge rather than the two people involved.
Once there is clarity on the finances, negotiation can, and should start in the hope and expectation of coming to a settlement, or at the very least narrowing the contested issues. At any point, the court proceedings can be short-circuited by an agreed consent order being filed with the court.
Where this doesn’t work, the court will have a without prejudice hearing called a financial dispute resolution (FDR) hearing in which a judge will try to assist the parties come to a sensible solution, by giving an indication of how they would adjudicate on an outline of the facts and figures if the matter came to trial before them.
Sometimes this indication comes as a huge shock to one party, who is emotionally invested in a picture of their future which is entirely disproportionate to the finances available. This often means that the financial dispute resolution does not result in a consent order, but all is not lost.
On many occasions, I have seen negotiations one or two weeks after the financial dispute resolution result in an agreement, once the shocked party has had an opportunity to come to terms with the reality of the situation, and perhaps take further advice. This is helped by the usual direction after a failed FDR that both parties must file an open offer within 14 days after the hearing, which serves to concentrate the mind wonderfully.
The judge will also have given clear warnings to the parties about the huge cost of going to trial.
So the message is – all is not lost, just because you cannot come to an agreement without court proceedings. A good lawyer will always negotiate as soon as you have proper financial disclosure, and advise you on a realistic basis for your case and therefore the foundation of your future life.
We do this all the time. Come and see us if we can help you.