Divorce and the 12 Days of Christmas
16 December 2015
We all know that Christmas can be a stressful time for everyone as there is just so much to do. The pressures of finances, time to buy and wrap presents, buying food and cooking can bring many divorcing couples to the brink.
The reality for people who are already in an unhappy marriage is that December can really focus on all the issues and problems in the relationship and can leave them wondering what their options are to make a change to their lives in 2016. Whilst January is a pick time for divorce in the UK, if you think you are on the brink of separation, your Christmas period is going to be difficult.
I have highlighted 12 of the challenges a couple going through a divorce at Christmas can face, along with some advice which may help you to get through this very difficult time.
First Day - Grounds for Divorce
There are currently five grounds you can use when issuing a divorce petition in England or Wales.
- Unreasonable behaviour
- Separation for two years with agreement from your spouse
- Separation for five years without agreement from your spouse
There are conditions for each of these grounds and the most commonly used is 'unreasonable behaviour' as this covers a wide range of issues in a marriage. It means that you cannot be expected to live with them any longer. This can include serious allegations such as domestic abuse or a lack of support with the home and children.
Second Day - Angry Texts
It is often really difficult to control feelings of anger when you and your partner are getting divorced and with the use of mobile phones, message apps and email, it is very easy to let your anger get out of control in a message. Whether it is you or your ex who is angry, you do need to find ways of dealing with your anger and trying to avoid taking it out on each other.
You can achieve this by taking time to calm down before replying to a message if it has upset you, and try to deal with your ex-partner as you would deal with one of your colleagues at work.
If you are receiving angry messages from your ex-spouse, it is probably best to ask them politely to stop sending them as they are upsetting. If you feel that the texts amount to harassment then speak to a Divorce Solicitor who can help you try and reduce the conflict or take steps to protect you through the Court if necessary.
Third Day - Signed Divorce Petition
If you have received a petition for divorce in the post, there are a number of routes you can take in response. You can:
- Agree with the divorce petition
- Disagree with the divorce petition
- Start your own divorce petition
Each of these options will have repercussions and you should think carefully about how you want to respond, without reacting in anger to the situation. If you take option two or three, there is a cost involved in these steps so it is worth exploring the options and getting expert legal advice from a specialist Divorce Solicitor before making a decision.
Fourth Day - Maintenance Orders
There are two types of maintenance orders that are often used in divorce. These are maintenance order for spouses and maintenance orders for children.
It is a good idea to make some informal arrangements even before these orders have been finalised for the divorce as this can mean there are clear boundaries in place during the period of separation.
Spousal maintenance is payable whilst both parties are still alive, until the Court orders it to stop or the spouse receiving maintenance remarries. This can take many forms and can have a fixed time period or be for a nominal sum. This Court order can be changed in future with an application to Court if either person's circumstances change.
A child maintenance order is not normally agreed by the Court but worked out informally between the parents. This is because there are so many different situations and circumstances, it would not be appropriate. There is an opportunity to make a child maintenance order by consent linked to all other arrangements made in the financial settlement.
Whatever maintenance orders you put in place, it's very important to get legal advice before agreeing with any financial settlement in a divorce.
Fifth Day - Instructing a Divorce Solicitor
There are lots of options available to you if you are getting a divorce. You can go through the divorce process without legal representation, buy a DIY divorce package, instruct a Divorce Solicitor on a fixed fee or instruct a Divorce Solicitor on an hourly rate.
There are pros and cons for each of these options and it is worth talking through your situation, financial constraints and desired outcome with a Divorce Solicitor before deciding how best to proceed. One thing is certain, if you do not get the right legal advice from the start of your divorce, you may well regret it later.
Sixth Day - Agree Arrangements for the Children
Getting the arrangements for your children in place during your separation can help you to feel more in control and at ease with the situation. Everyone has different circumstances – if one parent has been staying at home looking after the children, this is likely to continue. If there is already a share of pick up and drop offs during the week, this is likely to remain.
Try to be as fair as possible, remembering that both of you remain the parents of your children, regardless of whether or not you are still together. In addition, put all agreements in writing so you are both clear on your responsibilities.
Seventh Day - Resolve Disputes about the Children
If you are struggling to reach agreement about how you will manage the children, you may have to ask the Court to help you with this. The Court will treat both your wishes and those of your ex-spouse as secondary to the needs of your child or children. You should be prepared that the Judge's decision may not go your way. If possible, identify some of the sticking points between you when you try to agree matters – resolution may be a better outcome than letting the Court decide for you.
Eighth Day - Financial Settlements
Income, property, financial assets including pensions, bonuses and overtime and all other income and assets will be taken into account when making a financial settlement. If your marriage was long, it can be a lengthy process to untangle the financial strands of your relationship, but in a short marriage this can be an easier process. Full disclosure from both parties is essential and there are likely to be penalties if you are dishonest and try to hide any assets.
Financial settlement in a divorce can result in disagreement and dispute, and can be quite adversarial but by implementing an open approach to negotiations, it doesn't have to be that way. A specialist Divorce Solicitor can help you to understand exactly what you are entitled to and can also assist in negotiations by taking the heat out of the situation.
Ninth Day - Divorce Pension Assets
Most of the time a pension is one of the biggest assets in the marriage next to any property owned. Make sure you don't lose out when making your divorce financial settlement. The most commonly used methods of dealing with pension assets are: Pension Offsetting, Earmarking and Sharing.
- Pension Offsetting allows you to offset the amount you would get from the pension against other assets in the settlement. This can be problematic as there may not be enough assets to offset the value of the pension.
- Pension Earmarking – this is where a portion of the pension is earmarked for you. There are drawbacks as this is only payable once your ex-spouse has retired and will not continue after their death.
- Pension Sharing – this is a good option as it also allows a clean break order to be made. The pension provider has four months to administer the pension sharing.
Make sure you are not short changed – get legal advice about pensions and divorce as soon as possible.
Tenth Day - Missed Maintenance Payments
Christmas is tough enough financially without adding a missed maintenance payment into the mix. It can be very frustrating, upsetting and potentially disastrous if your ex-spouse misses a maintenance payment, but what can you do about it?
There are a number of options open to you and they are:
- Get the maintenance order registered in a Magistrates Court
- Apply for an attachment of earnings order
- Apply for a warrant of executionObtain a third party debt order
- Obtain a judgment summons
- Apply for a decision from the Court on how to enforce payment.
All of these options cost and won't be quick, but they will offer you an ongoing resolution.
Eleventh Day - What Not to Do when Getting Divorced
- Don't forget to communicate – talking will help you to get through your divorce. Talking to your ex-spouse when appropriate and to friends and family to ease the burden and get things off your chest.
- Don't refuse to negotiate – it will make things easier for you in the long run.Don't take it out on the children – divorce is tough – remember they are going through it with you too.
- Don't forget to update your Will – if you die and you have not updated it, your ex-spouse may be entitled to some of your estate. If you don't have a Will, make one.
- Don't settle too soon – take legal advice from a specialist Divorce Solicitor and stick to it.
- Don't forget to be kind to yourself – divorce is a difficult time emotionally, go easy!
Twelfth Day - How our Divorce Solicitors Can Help
If you are getting divorced this December, our Divorce Solicitors offer free initial legal advice and can help you to get through this difficult time. We offer:
- An immediate appointment with a specialist Divorce Solicitor on the phone
- An in depth and detailed consultation with you the next working day
- Fixed fee divorce services to suit different circumstances and budgets
- Easy to understand legal advice without the jargon
- The price we quote you in writing is the price you pay.