Family Law Collaborative Divorce Blog : Bath Divorce Solicitors : Sharp Family Law : UK Collaborative Law & Family Mediation : Bristol, Swindon & Southern England

Daily Mail Newspaper began January 2010 with “Divorce Day heralds rising toll of marital strife in 2010” as a headline on the 4^th January 2010, quoting the website divorce-online.co.uk as saying that the general divorce rate would rise by 2% in 2010 with the recession taking most of the blame. It has ended the month with the headline “Divorce rate falls to 35 year low” on 29^th January 2010.

Confused? More couples do traditionally decide to divorce during the month of January than during any other month in the year, but the latest figures, published by the Office for National Statistics during the past week, show that fewer couples ended their marriages in 2008 than in any year since the divorce boom of the 1970’s.

Will 2010 be the year that bucks the falling divorce rate trend of recent years as divorce-online.co.uk predicts?. Will divorce levels rise in 2010 as a result of the strains and stresses added to marriages by the recession?. Much may depend on the relationship support that is available and offered to help couples work through their issues and decide whether staying together is an option to be explored.

In their recent article Divorce rate lowest for 29 years, the BBC quote Claire Tyler, chief executive of Relate as saying "Relationship support works, with 80% of respondents to a Relate survey, who wanted to keep their relationship together, stating they felt counselling helped to strengthen their relationship. Independent research also showed we know that 50% of separated people said they felt there were things they could have done to prevent their break-up, and they wished they'd done more."

Recently, I was approached by a couple who wanted my help with the issues surrounding what they thought was their pending separation. They were anxious to find a non-contentious process as they feared a fall out between them would adversely affect their 3 year old son. That fear of how best to co- parent after parting opened an opportunity to refer my client, the husband, to Chris Mills. Specializing in supporting divorcing and separating couples to understand and manage the complex emotional dynamics of their separation, Chris was able to help the husband look at his situation and relationship with his wife. A few days later I received the following email

“My wife and I are going to remortgage and stay in our home. It is thanks to your caring and knowledgeable service. I cannot thank you enough”

The wand that encourages marital reconciliation may not always be available nor work its magic but as the BBC reported in their article more marriages might be saved with with the involvement of th right professional. In the About Section of this blog are listed two mental health professionals who have been accredited by Resolution to work in the specialized field of divorce and separation.  

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Amongst the 10 Bizarre Divorce Settlements Mental_Floss reminded us that to help foot the bill for his 1977 divorce from Anna Gordy, the singer Marvin Gaye agreed to record a new album and give all of the royalties to Gordy as maintenance.

Princess Diana lost the title “Her Royal Highness” when she and Prince Charles divorced in 1996 but amongst other things it was agreed that she retain Kensington Palace, her jewellery and the ability to entertain at st James’s Palace with the Queen’s permission.

The actor David Hasselhoff’s as part of his 2008 divorce settlement with ex-wife Pamela Bach, kept possession of the nickname “Hoff” and the catchphrase “Don’t Hassle the Hoff.”

Not only are the lives of the rich and famous complicated but so are many others that separate and divorce. Paul and Deborah’s marriage of 19 years ended in divorce last year. Before the settlement, Paul wanted to minimise the changes for the family. Deborah wanted to stay in the family home but was worried about the costs of keeping it going. Paul and Deborah agreed the family should stay in the home until the children finished their schooling and Paul would pay for any maintenance and repairs to it until then. When the house was sold, Paul’s maintenance expenses would be deducted from the proceeds.

The children got to continue their regular routine, Deborah didn’t have to budget for costly repair works and Paul will receive recognition for his financial support. Identifying what was most important to this couple was crucial. The court would not have been able to make such a mutually satisfactory arrangement without the cooperation of the couple.

Mark and Linda were married for 25 years. He had been the primary wage-earner, she the homemaker. Mark wanted to cut back on the hours he worked and freedom from potentially lifelong support payments. Linda wanted a settlement that reflected the sacrifices she had made to support Mark in his profession and raise their children. She also wanted his support whilst she re-trained.

Face to face negotiations helped to ease tensions between them as they both recognized and acknowledged the contributions that each had made to the marriage. By taking out loans, Mark made a lump sum payment to Linda that enabled her to return to school and train for her own career. He was pleased that she would shortly be able to support herself and relieved not to be making support payments at a time when he wanted to cut back on his hours. A court might have imposed spousal support payments that would have hindered Mark’s career change and impeded Linda’s ability to invest in her future.

Both Paul and Carol, and Mark and Linda were able to negotiate the divorce settlement that worked for them and their families by using the dispute resolution process called Collaborative Practice. It helps separating and divorcing couples:

• To think creatively and craft their own individualised solutions to their issues instead of the restricted range of outcomes available in the divorce court system.

• To use their intelligence and energy toward creative problem solving rather than toward recriminations or revenge – fixing the problem rather than fixing the blame.

 • To keep control of decisions about restructuring financial and child rearing arrangements in their hands and not those of a Judge.

• To take control over what happens, how fast it happens, who is involved and ensures that those who are, including their solicitors, work only towards a mutually satisfactory settlement. Everyone has an input and brainstorming and creative ideas can emerge to resolve differences and issues.

Your divorce settlement may not need to be as bizarre as some highlighted by Mental Floss but no court will be better able than you to create and craft a settlement that works for your family.

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"The contact schedule has it that our 3 year old son stays with me on a Tuesday and Thursday night.  So he should be with me on the Thursday night in two weeks time. My Ex-partner insists he be with her - Why? Because, it will be Christmas Day that Friday morning. We both want him to wake up and open his presents in our separate homes!"

The dilemma over with whom children spend Christmas morning taxes all too often Judges at this time of year, as separated and divorced parents fight over the date in the divorce courts. The ensuing judgment leaves few contented, not least the unfortunate children, as wonderfully illustrated in the Dear Santa letter posted on Judith’s Divorce Blog

The Parents of the 3 year old son, worked out with their family lawyers through a Collaborative Practice dispute resolution process, that it was the joy of watching their son open his presents that they missed the most. So, they agreed to meet on Christmas Eve to open presents together. The contact schedule remained in place, and the child had both his parents with him as he opened presents.  

The greatest gift you can give your child in 2010 and beyond is to love your children more than you hate your spouse and work cooperatively with the other parent to co-parent your children

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The value of Sandy and Rob’s house had fallen in the recession. The prospect of acquiring one let alone two alternative homes was no longer possible. My client Rob (a fictional name) feared that, along with the broken marriage, he would lose his job and with it his mortgage capacity. Sandy hadn’t worked in ten years and the cost of child care worried her.

“They started to fight when the money got tight, and they just didn’t count on the tears”are lyrics from the song “Scenes from an Italian Restaurant” by Billy Joel in his 1977 album “The Stranger”. But must it always end in tears? Must differences over scarce and limited financial resources be determined by divorce court room battles?

Not always. Sandy and Rob, along with other separating and divorcing couples are increasingly discovering that there are lawyers and other experts with specialist knowledge and experience of divorce, who offer less destructive dispute resolution processes. One such process is Collaborative Practice.

• It helps couples to create their own individualised solutions to their issues instead of the restricted range of outcomes available in the divorce court system.

• It encourages couples to use their intelligence and energy toward creative problem solving rather than toward recriminations or revenge – fixing the problem rather than fixing the blame.

• It keeps control of decisions about restructuring financial and child rearing arrangements in the hands of the couple and not the Judge.

• It places a premium on the welfare of children and protects them from the harm associated with litigated disputes between parents.

Sandy and Rob, in meetings with their collaborative family lawyers, worked through their fears and emerged with a divorce settlement that would work for them and their family. The collaborative professionals helped them to focus on settling their needs and interests, instead of pursuing their rights and entitlements. Choosing the right process in the beginning can save separating and divorcing couples time, money and tears in the long term.

Billy Joel continues his song “....they got a divorce as a matter of course and they parted the closest of friends”.That ideal may not always be possible but how a couple chooses to divorce can impact them and their children for years to come.

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“I share Christmas. So on Christmas Eve I am with my mum, then with my dad on Christmas Day. Then the other Christmas I go to my dad’s on Christmas Eve and then I spend Christmas Day with my mum. That is how we share it. And Grandma comes over” (Boy aged 8 years).

Christmas highlights to us all the emotional significance of “family”. We look to forge, renew or strengthen those ties that we value the most at this time of year. For the family of divorced parents, deciding where anyone will be and with whom over Christmas can be particularly difficult and challenging. The non residential or absent parent will often want more time with their children at Christmas than at other times of the year. The resident parent can want to maintain the old family traditions that retain the children with them. All too often, family solicitors and Divorce Courts are engaged at best to negotiate or mediate between parents and at worst to dictate to them where and when children will be, and with whom.

But does Christmas have to be a difficult time for a divorced family? Here are five suggests that may ease the tension

1.  Do plan early – Plan the arrangements for the Christmas holiday as early as possible. Stress about it only increases the closer the day looms. If agreement cannot be reached, involve a mediator or a collaboratively trained family law solicitor, who focus on helping separated and divorced parents to find solutions that work for them and their families. Resort only to the Divorce Court as a last resort.

2.  Do put your children first – The Christmas season is centred on children. So focus on them. Ask yourself what you can do to ensure the holidays are happy and productive for them. If old enough, talk to your children about the traditions they would like to continue and with whom - Finding a Christmas tree with dad or decorating the cake with mum.

3.  Do share time with children over the Christmas period – Christmas is a time when families can focus on what unites rather than what divides them. Unless parents live miles apart, there is no reason why children cannot see and be with both parents over the Christmas holiday. See what you can work out, remembering always to do what is in the best interest of your children

4.  Do let children remain in contact with both parents and their extended family – When it isn’t possible for one parent to see the children for whatever reason, do let them call that parent to say “Happy Christmas”. Grandparents, Uncles and Aunts etc are also an integral part of a child’s life and provide continuity and security in the face of the changed family structure.

5.  Do be flexible – “Madonna let’s Guy see his boys...on terms” was the newspaper headline. The singer was reported to have issued a list of demands that Guy Ritchie must meet when their children were with him. Everyone loses when that happens and it’s the children who feel it the most. How Christmas is organised by divorced parents can provide children with some hope that their parents can and will be able to work things out during and for the rest of the year.

Thoughts of Christmas and divorce many not immediately stir feelings of peace and joy but Christmas is a time when family connections can be prioritised and its divisions relegated. By focusing on planning ahead, being flexible and putting children first, divorced parents can help children and themselves enjoy Christmas and have happy memories of it together.

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"A Collaborative Family Law approach allows separating couples and their lawyers to sit down together to reach an agreement face to face in a much quicker, less traumatic process, that can provide a more satisfactory conclusion for all involved." so said Lord Bach, the justice minister in charge of legal aid, earlier this week.

The support from the Minister, for Collaborative Law, comes with the announcement from the Legal Services Commission (LSC) that it is to consult for the first time on whether legal aid funds should be made available to separating and divorcing clients who choose to use the collaborative law dispute resolution process.

In addition to the benefits voiced by the Minister, Collaborative Law is seen by him as a process that will help settle a divorce without going to court. "The breakdown of a family is an extremely distressing time for all involved, particularly children, which is why I am determined that courts should be the last resort. Sadly that is currently not the case, with only one in five legal aid clients experiencing a family dispute opting for the benefits that mediation can bring”.

It will still be 1st October 2010 before collaborative law is added to the range of process options funded by the LSC. But it would then give all families, whatever their financial means, access to the same range of dispute resolution options offered by family law solicitors, when faced with separation or divorce. With the extended range that is affordable to more couples, Lord Bach will be further towards ensuring that the divorce courts are the last resort for many more families working through divorce.

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Collaborative Law is proving to be successful when used by divorcing couples said one of the UK’s most senior judges last week at a meeting of 200 of London's family lawyers (....yes including me)

Lord Kerr of Tonaghmore, a justice in the UK’s new Supreme Court, in giving his backing to collaborative law highlighted that:

"one of the most inspiring facts about it was that 85 per cent of couples who used the collaborative approach had been able to agree an amicable settlement. On any view no further testament to the success of the system is required” (statistics from family lawyers’ group, Resolution).

Lord Kerr went on to tell all of us present that he thought that the collaborative approach – recently used by comedian Robin Williams - was now having a profound impact on matrimonial law. As the Times Online reported, Lord Kerr explained that the essence of the new approach was conciliation, not “victory by one side over the other” or "the vindication of one viewpoint at the expense of an opponent's. Rather the fundamental purpose is to shape a solution to the problems experienced by the parties that not only resolves the immediate dispute, but which will endure to sustain a relationship after the parties have left the stage."

This goal was not just "an incidental side effect of civilised negotiations", he added. "It reflects its centrality to the entire process. It required more than civility and courtesy; it required the mindset that asks: how can we fashion an outcome that was best for all those affected, such as the children, in the dispute.”

Comprehensive information on Collaborative Law can be read on the website of The International Academy of Collaborative Professionals (IACP). In brief, Collaborative Law (sometimes called Collaborative Practice) helps separating and divorcing couples to resolve their differences respectfully, in private and without the threat of court action. The Collaborative process differs from a divorce Court process by retaining control of it with the divorcing couple and not with a judge.

The aim of a Collaborative process is to help separating and divorcing couples to:

- Focus on what are their most important issues, especially children;
- Communicate more effectively throughout the process;
- Lay the foundations for a healthier relationship during and after, the separation or divorce.

At the end of this coming week, some of those same family lawyers from London and other parts of the World (....yes including me) will be attending the 10th Annual Forum of The IACP in Minneapolis, USA.

As the legal profession learns to focus on settlement rather than trial and the Judiciary continues to back out of court processes like Collaborative Law, many more divorcing couples will be able to get through their divorce with their dignity intact, do what is best for their children, come up with fair financial settlements and move on with their lives. 

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Those amongst us who are divorced or widowed could suffer 20% more chronic health conditions such as heart disease, diabetes or cancer than those who are married. This statistic comes from research published in the September 2009 issue of the Journal of Health & Social Behaviour.

The research of 8,652 men and women in their 50s and early 60s in the US, found that the physical stress of marital loss continues long after the emotional wounds have healed. While this does not mean that people should stay married at all costs, it does show that the soon to be and newly divorced need to be especially vigilant about stress management and exercise.

In my practice as a family and divorce solicitor in Bath and Bristol, UK, I witness the enormous stress clients suffer as their broken marriages come to an end. Aside from the many negative emotions surrounding the breakup like fear and anger that cause stress, there is the alternative accommodation that has to be found, the finances resources that must be stretched, the contact with friends and families that is strained or lost, and the disturbed sleep, poor diet and reduced exercise that creates the unhealthy lifestyle, all adding to stress levels. Divorce is one of the most intense stressors.

To try and reduce that stress, I encourage clients to consider choosing a non-adversarial approach to divorce, like Collaborative Practice or Family Mediation. Not only might that approach help them achieve reasoned settlements but it could be healthier for them, than a positional, adversarial Divorce Court hearing.

But away from the divorce court clients still need to be good to themselves by developing habits that reduce their stress. In her Nine Tips for Dealing with Divorce Stress Cathy Meyer relationship coach and divorce mediator suggests ways in which, during the process of divorce, stress can be handled. They include:

• Making sure you pay attention to your emotional needs
• Keeping yourself physically fit
• Participating in activities that will nurture you emotionally and physically
• Letting go of problems that are beyond your control
• Giving yourself permission to feel
• Charging your expectations
• Giving yourself time to make decisions
• Making time for fun
• And letting go

Her article Nine Tips for Taking Care of Yourself During and After Divorce also contains some useful information.

As the research above highlights a divorce can be bad for your health. But by taking care of oneself, by focusing on keeping active, healthy and moving forward and not stuck in the past, by choosing a process like collaborative practice that focuses on settlement and reduces conflict , it is possible to minimize the damaging effects of divorce and move on with life.

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For many people facing divorce, the value of their pension fund may be their biggest asset. The most common way to factor the value of that fund into a divorce financial settlement is for the value of another asset held, such as cash or property, to be offset against the value of the pension fund.

However, It is common practice for the value of the pension fund to be reduced, but why and by how much?

Why the Value of a Pension fund is Reduced when Offsetting

An existing pension has already enjoyed tax relief on the contributions made into it. This means for example, that if Spouse A had a £10,000 pension and Spouse B had £6,000 in cash and was a higher rate (40%) tax payer, the £6,000 could be turned into a £10,000 pension fund through tax relief on the contribution. That would then equalise the value of the pension funds.

In addition, Spouse B with £6,000 in cash has the choice to use that money today whereas Spouse A must wait until retirement age before he has use of it and even then only 25% of the fund can be paid as a lump sum with the rest as an income for life; where the payment term is uncertain and where there is often no value on death.

One of the leading court cases on pension offsetting is Maskell v Maskell where Lord Justice Thorpe established that the value of pensions and the value of other liquid assets should not be compared on a like-for-like basis. The Judge directed Maskell and Maskell back to mediation to sort out the right value for offsetting rather than provide guidelines. As a result, it is not uncommon in a contested divorce for the lawyer acting on behalf of the spouse with the pension to argue, incorrectly in my opinion, that no value should be apportioned to pensions.

The Reduction Factor

In terms of how much should be offset, it seems that in practice values apportioned have ranged between 25% and 80% of the pension. So if one spouse holds £100,000 more in a pension fund than the other, the range of potential cash offset could be between £25,000 and £80,000. That’s quite some spread and not particularly helpful for divorcing couples.

Solutions to Potential Arguments over the Value of Pensions when Offsetting

This leads me to two points.

First, I was pleased to see that Bradshaw Dixon Moore, a firm specialising in actuarial reports for divorcing couples, announced on 30th September 2009 that they now have a Pension Offset Report service available. The report factors in both the tax issues and the importance of cash. They use actuarial principles and utility theory in reaching an adjusted value for the pension and the report can be used in Court. It costs £200 + VAT and for any party who feels very concerned about how the value of pension funds have been offset, this could be a useful solution.

Secondly, the variation in offsetting values highlights that there is great potential for a raging argument over how to fairly separate assets on divorce. If you are at the stage of wondering what type of divorce may suit you best, it is worth noting that one of the key attractions of a collaborative divorce is that both parties can work with a highly qualified and experienced Financial Neutral to work out how to split assets fairly and make a joint and informed decision on what value to apportion to pensions. A Financial Neutral can also help you decide whether pension offsetting is the best option, explaining the relative advantages and disadvantages of pension sharing for your circumstances.

Miles Hendy is a Chartered Financial Planner and Resolution accredited Divorce Specialist at Fraser Heath Financial Management.

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