What are the options to get a divorce or dissolution without going to court?
For most people, divorce conjure’s up thoughts of battling through the court system. Do you have to go to court? We discuss alternative methods such as trying to mediate or negotiate with your ex.
For ease, we will refer to divorce and dissolution as “divorce”.
Save money and negotiate your way through your divorce
The family courts are very busy places and some say they are almost reaching breaking point. If you can steer clear of the court process, you can avoid lengthy waiting times between hearings (sometimes it can be four to six months from one hearing to the next) and get divorced quicker. Plus you can save yourself a lot of money, anguish and emotional pain.
Dealing with the courts, solicitors and barristers can be a very costly process. Realistically, couples only end up in court if they can’t come to an agreement. Acrimony means a lengthy case and ultimately, it will cost you lots of money. If your spouse doesn’t want to attend the MIAM you can’t force them. However, if you do both attend, you may consider mediation as an alternative to the court process.
What’s a MIAM?
If you have started court proceedings, you will normally have to prove that you have been to a Mediation Information and Assessment Meeting (MIAM). The meeting is an introduction to mediation. The purpose is for you and your spouse to consider mediation as an alternative to going through the court process.
If you’re a victim of Domestic Abuse, you may be exempt from attending the MIAM. Otherwise, if you don’t attend, the court may not look very favourably on your non-attendance. In most cases, it is a legal requirement to attend a MIAM if you are taking your case to court. If you are on a low income or Legal Aid, you may not be charged for your MIAM.
Mediation is a way of trying to work through your issues together with a third party (the mediator) present. You will be looking to come to a “deal” so you can both move on with your lives. You can hopefully work out your issues around finances, money, children and property without court intervention.
Should you still take legal advice if you are working with a mediator?
If you’re thinking about mediation, should you see a solicitor? Well, the chances are that if you see a solicitor before you see a mediator, they will discuss how and whether mediation could work for you. Everything depends on what you want as a divorce settlement and how things could pan out with your ex. You could have a spouse who believes you should get nothing, or equally, you could be dealing with an ex who is being very reasonable. It’s important to think about what you want and to consider if YOU are being fair-minded too.
Should you speak to a solicitor if you are going to mediation?
A mediation firm may offer access to a solicitor and barristers as part of their package.
A mediator cannot give legal advice, so you may want to consider talking to a solicitor to look at the assets available and what you both require for the future. It’s also worthwhile speaking to a financial advisor. You should look at your housing needs, maybe mortgage potential, tax implications on receiving a settlement and future pension requirement for retirement. All these matters should be considered. You should look at your full-life picture. We have experts in all these areas of expertise in The Hug Directory.
The mediator will listen to both points of view and they are trained to keep things calm. They will also make suggestions for you both to consider and encourage open and honest conversations between you.
Be prepared to be flexible as you negotiate
When you have an idea about what you want to achieve, it’s important to remember that you have to give and take as you negotiate. The idea of mediation is that it’s a two-sided approach. Your ex will have needs too, which, like it or not, you will have to consider. Try and focus on the most important issues for you and forget the small stuff. If your ex wants the wedding cutlery, maybe giving in to that request will mean you can make a more important gain in another area.
Even in mediation, you will need to complete financial disclosure. You must give information about your income, be that from work or benefits, your expenses and living costs for things such as bills, food and car. You must prove how much you have in your bank account and disclose any debts. If you have any properties, businesses or other assets, these must also be declared to the other side. Both parties must be honest because if they are not, and one side discovers for example that there were undisclosed assets, this could see you ending up in court.
You may be able to get Legal Aid for mediation. If you’re on a low income or receive benefits check to see if you qualify.
Can you negotiate with a controlling ex?
Usually the set-up for mediation is that the couple sit together with the mediator. However, in some cases this is not possible because of acrimony. In this scenario, the couple sit in separate rooms and the mediator moves between rooms to speak to the couple. It is possible to mediate even if a couple really don’t get along. Mediators are trained to deal with this.
When you have an ex who has been abusive or controlling, it’s worth speaking to the mediation company to explain. In such a scenario you may be able to have two mediators during your sessions to negotiate. It’s worth thinking about the options before dismissing mediation completely. You may find that your usually dominating spouse is a push-over in mediation.
If everything goes well and you arrive at an agreement, your mediator will write a “memorandum of understanding”. If the memorandum is regarding money or property then it’s good practice to get this turned into a consent order. Getting this in place means you can take your ex to court should they not do what they promised. A consent order can be applied for after divorce proceedings have started. It will need to get approved by a judge in court.
There are solicitors who are specially trained in collaborative law. You and your spouse, along with your respective collaborative lawyers, meet in the same room to try and negotiate and come to an agreement. Each party pays their own legal fees and the cost will depend on how long the process takes. Before the process starts, each spouse has to sign a contract to say that they will try to come to an agreement. If you do find common ground and can find a solution, your agreement can be turned into a consent order.
Arbitration is a little like attending a court but an “arbitrator” makes the decision based on your circumstances, rather than a judge. The arbitrator and venue for the meeting are chosen jointly. It is worth noting that an arbitrators decision is legally binding.
Arbitration is usually more cost effective than going through the court process and much quicker than waiting for a date for a court hearing, which can take months. It’s always a good idea to speak to a solicitor and get some legal advice on your situation before attending arbitration.
If you can find common ground with your spouse, you may be able to talk to each other directly or through trusted friends or members of your family. You could also choose to use a family solicitor to conduct your negotiations. If you are not using a solicitor, it’s a good idea to get some legal advice so you know your rights. As always, think about your future plans and include your retirement years.
Just because you use a solicitor, doesn’t mean that the case will end up in court. Plenty of people negotiate via a solicitor as it means they have legal advice on-tap. Your solicitor will correspond with your spouse either directly, or via their solicitor if they have one.
Using a solicitor to negotiate
If you use a solicitor they are there to present any legal arguments. This may bat-off unreasonable demands from the other side. It can be very tricky trying to negotiate yourself. If you have an opinion on a point of law and your spouse thinks in a completely different way, matters can quickly heat up. . There are many myths surrounding divorce and dissolution such as “I have full custody of the children because I am their mother” or “I don’t have to pay any maintenance because I hardly see the kids”. If too many people get involved this can be exhausting. If negotiating isn’t working, be prepared to try another way. There’s no point in going around in circles, it’s exhausting.
Sometimes a spouse doesn’t want to negotiate because they don’t want their marriage or civil partnership to come to an end. They are in denial. In this case, it’s kinder in the long run to instruct a solicitor to get things moving and to help you negotiate. You may feel guilty about forcing the issue, but if the relationship is truly over, you both have to move on with your lives, so be strong and make it happen. It’s in the best interests of your partner that they are able to move on too. Unfortunately, sometimes you do have to be cruel to be kind.
Many people also use a Divorce Coach to help them through a non-court divorce. A coach will help you to see past your emotions while you negotiate and mediate your way through divorce, and to the bright new future ahead. Find listings of divorce coaches here
If you want to try and achieve an out of court divorce or dissolution, then take a look in The Hug Directory to find collaborative solicitors, family solicitors, mediators and financial advisors.