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Divorce - counting the financial cost

It is commonly acknowledged that January is the busiest month for those wishing to start divorce proceedings.

Following an often intensive festive period with extended family and in-laws, it is the time of year when couples with marriage difficulties - celebrities or not - decide to make a fresh start. It may also be preferable for those with children to hold off until after Christmas and the new school term begins.

The number of divorces in England and Wales increased by 4.9% in 2010, official statistics show. This was the first annual increase for eight years, following falls in the divorce rate that were matched in Scotland.

Despite the fact that divorce is an unpleasant process, there are ways to make it easier for everyone involved.

It is crucial, especially for couples with children, that they do not become embroiled in acrimonious divorce proceedings. This is also a way of ensuring that legal costs are kept to a minimum.

Getting started

The preliminary consideration for anyone who is thinking about getting divorced is to seek specialist advice from a family solicitor at an early stage.

They will advise you on your options so that you can decide the best solution for you. This is particularly the case if you and your spouse are different nationalities or either of you has ties with another country.

Before discussing the court procedure, your solicitor should advise you on alternatives for resolving financial and children issues.

One of the more popular methods is mediation, which involves you and your spouse seeing a qualified mediator to give you guidance. This will only be appropriate if both of you are completely committed to the process and open about your financial circumstances.

If mediation is not for you, other options may be productive, for example, negotiations through solicitors or meetings between you, your spouse and both solicitors.

Process

Regrettably, the language and procedure in this area are outdated and off-putting.

Unless you have been separated for more than two years, you must rely on one of two fault-based facts - your spouse's adultery or unreasonable behaviour. This often starts the process off on the wrong foot.

However, you can minimise the potential for conflict by not naming the third party on an adultery petition or by using mild examples of your spouse's unreasonable behaviour and, if appropriate, sending your spouse a draft divorce petition before it is issued.

An undefended divorce itself can be dealt with straightforwardly and at low expense. It is essentially a paperwork exercise which your solicitor can do on your behalf very easily.

The more difficult aspects are arrangements regarding children, such as who they are to live with and how often the other parent will see them, and the division of your finances.

Children and money

The court's first concern will be the welfare of your children. Although emotions may be running high, by far and above the ideal would be to reach an agreement with your spouse directly about childcare arrangements.

If you can, there will be no need for the court to make an order. If not, you may be able to seek help from a family member who is relatively independent.

Alternatively, you may be directed to a mediation service, involving the court as a last resort. It is important to strive to avoid using your children as a weapon in the divorce and to keep to any agreement made. For example, changing arrangements at the last minute or being unreliable with timings will only have a damaging effect on your relationship with the other parent and on your children.

Many people assume that if, for example, their spouse has had an affair or has behaved badly, this will have an effect on how the family finances are split. This is not the case. Only in extremely rare cases will conduct be taken into account.

There is a duty on both spouses to give details of their entire financial situation. If either party is dishonest or tries to hide assets, the court has powers to address this and to make costs orders.

A frequent cause of dispute is agreeing the value of your assets, such as the family home and pensions.

One way of speeding the process up and minimising costs would be to prepare an agreed schedule setting out the values of all of your assets, held jointly and individually, which you can then give to your respective solicitors.

If you have an accountant or an independent financial adviser, they may be well placed to assist you with values of business interests or pensions. You could also instruct estate agents to provide you with some informal market appraisals, which are free of charge, to give you an idea of the value of your home. This may short circuit the costly and time-consuming disclosure process.

Whilst the financial process is under way, it is important to avoid changing arrangements between you and your spouse without notice or before taking advice, for example, cleaning out a bank account or stopping standing orders relating to household bills.

Despite the fact that the law can have the effect of heightening tensions between you, there are ways of minimising conflict to ensure that your divorce is dealt with quickly and cost effectively while preserving relations to ensure effective communication and co-operation.

This article by Harriet Errington and Katie O'Callaghan first appeared on BBC Online on 5 January 2012.

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