Divorce and being Blackmailed

[fleagal]

flegal - you are a solicitor aren't you? your reply is very typical of solicitors who prolong and profit from legal disputes. do you work in family law?

I'm not a solicitor, no. I work for various law firms in all areas of law including family law.

Unfortunately Solicitors are tasked with solving disputes which cannot be solved between the parties. This involves seeking *and accepting* advice. A good solicitor will assess the situation and calculate at an early stage what order the Court is likely to make at the end of a case (if possible). The job is then to manage a client's expectations and make them see sense. Two examples for family and non-family.

1. A client is owed £500 and wants to sue to get the money back. For amounts below £5k the court will only award fixed costs against the Defendant and to prepare documentation is likely to take an hour and another 30 minutes for the hearing. That's 1.5 hours at £195 per hour + VAT = £343.69. If the client wins he gets his £500 back, his court fee of £50 and fixed costs of £80 but it will costs him £263.69. I would tell him to go to the CAB or issue his own client through www.moneyclaim.gov.uk

2. A man discovers that his wife is having an affair. The matrimonial home is in his sole name as is the family car and the only pension of the marriage. He kicks her out, tells her she can’t have anything and expects the Courts to agree. In this situation he would have to accept that his wife took on the role of homemaker for the 30 years that they were married, cooked his dinners, made his sandwiches, did his washing and otherwise gave up any chance of a career. If he can't be talked around the Court would make a final order dividing the assets and possibly ordering him to pay his wife's costs out of his share of the proceeds. Costs up to and including a final hearing would be £8-15k each depending on the complexity of assets.

Some people seek the advice then roundly reject it, instructing their solicitor to do the opposite. This is when legal fees mount up.

As I have mentioned the level of fees I know that it will come as a bit of a shock to some readers. Unfortunately solicitors are expensive and you can be ripped off as much as in any trade. However, the operating expenses are high (e.g. a firm of 100 people, two thirds of whom are working administrative roles, would pay £250,000 per annum (or more or less) for professional indemnity insurance, whether used or not.)

Colleagues often comment that when describing their hourly rates, a new client will say "I wish I was on that much" to which the retort is "so do I" as the hourly rate paid to the solicitor varies between 12-18% (that's a guide at best and is different for sole pracpetalioners who generally have lower overheads thus more profit).

It's all about proportionality. With big business, say, acquisition of a factory and its employees (through transfer of contracts rather than slavery!) millions of pounds may be exchanged. A solicitors fee of £50k would be a drop in the ocean in that case. But in a family case when the matrimonial assets are £100k, going to final hearing when each party incurs £15k of costs each would be disproportionate.

But the major issue I have with family law is the failure the implement the 1989 Children Act. The first line says "The interests of the child shall be paramount". Family courts have aligned the interests of the child with that of the mother.

The Children Act is does put the childrens interests first as it should be. 'Aligning interests' is misleading though. In most cases women bring up children if only for the reason that the Mother gives birth to the child/ren and has to have some time off work. That's human nature. However, if the Mother returns to work and the Father gives up work to look after the child/ren the situation is reversed. Making a residence order in the Mother's favour only for her to place the child with a child minder whilst she is at work is not in the best interests of the child. This situation still fairly unusual though.

One arrangement, particularly for children of school age, is for a shared care agreement. This allows the child/ren to stay with both parents equally. Rather than an every other day arrangement which would be disruptive there would be a changeover during the week or at the weekends. This works very well but is wholly reliant on the parents having a good post-separation relationship.

To give one example (out of hundreds which I no doubt you would give to prolong your post) I have a friend who raised a child up to age 4 - his wife worked in a bank. When they split the family courts give sole residency to the wife! She then said "make no financial claim on me and you can see your child".

The situation you describe is all too typical I'm afraid. Another ploy is to say that the child does not want to see the Father and withhold contact for that reason. This can be reinforced by the Mother saying to the child "mommy is upset when you go to daddys but don't tell him or he will send me to prison". Putting the child in such a situation is commonplace from both sides. Of course I have hundreds of examples but with all cases and with all accounts that you hear from friends, family, acquaintances etc. you only hear one side of the story. The court has to wade through the information and disinformation to decide what is appropriate. Remember, even under oath people lie!

The reason these cases are not heard is done to the family law secrecy, supposedly to protect the child, but actually to protect the courts. These courts are more suitable to North Korea.

Family cases are all in private ('in camera' using the misleading latin legal term) to preserve the privacy of the individuals including the children. I wouldn't want members of the public sitting in court listening to my private life – we aren't talking about criminal proceedings after all..

It sounds as though you have had a raw deal and that is personal to you. Unfortunately when the Court is asked to adjudicate on such matters it does the best that is can with the evidence from each party and from the children through the Court Welfare Officer (now called the Children and Family Court
Advisory and Support Service Officers).

Unfortunately where there is an argument about children at least one parent will end up with a decision that they do not agree with. If the Court makes the correct decision (which is subjective) both parents will have had to compromise. There are no winners.

And I've never been to North Korea and cannot therefore comment.

[glashIFA@Paramount]

[QUOTE=fleagal;324441]

glash, You clearly have more understanding of the mechanisms of pensions than me but we are talking at cross purposes here. In ancillary relief proceedings (those relating to matrimonial finances) the Court will always look at the 'matrimonial pot' - the net assets held in joint names and the names of each party. Pensions are not added in at the full CETV as the full value of the fund is not realiseable immediately. For negotiation purposes the cash value of a pension is 25% of its CETV.

E.g. A couple has £100k in cash and the husband has a pension with a CETV of £100k. Using the full value of the pension an equal split would be the wife getting the £100k cash and the husband keeps the pension. Case law exists to adjust the value of the pension as described above. An equal split using the 25% rule would mean that the matrimonial assets would be calculated at £125k therefore each party would get £62.5k or the husband would get the pension plus £37.5k.

The main issue here is that a pension may be worth a certain amount but you can’t buy a house with it and you may not last long enough to derive benefit from it. But, *for negotiation purposes* a pension is *viewed* as 25% of its CETV. I’m not suggesting that the pension is worth less than it appears – the reduction is to give parity to the parties when divvying up the assets. There is an interesting account of an appeal case of Martin-Dye here: http://www.manches.com/practices/fam...cle.php?id=118


Okay fleagal, not going to labour this point but i think castoff101 was clear in his comment that ALL of the pension value was used in negotiations and it's important that a fully qualified response is listed.

I sought clarification from a solicitor that i work with who specialises and ONLY works in family law and i've reporduced her response below.

"I state in my email that Martin Dye V Martin Dye is good law. The article referred to http://www.manches.com/practices/fam...cle.php?id=118 is also a very good article. However, the posting (that would be yours fleagal) you attach to your email is incorrect in both its interpretation of the case and its application to ancillary relief cases in general.

The specific facts of the Martin Dye case were that the H had a pension already in payment. As I am sure you are aware, the CEB rather than the CETV is relevant where there is a pension in payment. This facts of this case are very different from a case where the pension is not already in payment.

I do not subscribe to the comments in the positing or the statement that for negotiation purposes the cash value of a pension is 25% of its CETV.

As you are aware this is a very complex area. How the pension are treated in any given case depends upon the level of the assets and value of the pensions and all of the factors the courts apply. The court gives first consideration to the needs of any children under 18. The other factors that the courts look at in no particular order are:

-income, earning capacity and financial resources of the parties
-standard of living
-ages of the parties
-any physical or mental disability
-contributions
-conduct (financial)
-value to each party of any benefit which one party may lose the chance of acquiring (usually pension)

Only upon receiving mutual exchange of financial disclosure in any case can I advise as to how the pensions should be treated and what % of the CETV or CEB should be used. The starting point is to get a valuation of the CETV and CEB so these can be looked at in the context of the overall assets.

The main points we as lawyers take from Martin Dye V Martin Dye are those set out in the article produced by Manches as follows:
"Points of application

1. Pensions in payment are to be characterised as ‘other financial resources’ within section 25(2)(a) of the Matrimonial Causes Act 1973 as they do not sit comfortably in the category of ‘property’ (being unrealisable) nor in the category of ‘income’ (as the income stream does not derive from future endeavour but from past employment or contribution which will generally have been effected during the course of the marriage).

2. In a case such as this, where the quality of pension in payment differs so significantly from that of the other assets, a pension sharing approach should have been adopted.

3. It might be appropriate, however, in some cases to aggregate the value of pensions with that of other assets and distribute the total value between the parties, for example when the parties have pensions in payment of approximately equal value or where the value of the pensions is small in comparison with that of other assets.

4. In any case where a Form A was filed after 5th December 2005, a pension enquiry form, Form P, should be used where a pension is significant and a pension sharing order may be made. This form directs the attention of the professionals to the information required for the just disposal of the claim.

5. Where proportionate, the court should consider the recommendations in paragraph 47 of the Social Security Select Committee Report for the instruction of an expert in a case that requires a bespoke valuation. "

Hope this clarifies the situation for any of you thinking of divorce!!!!

[Bluebird]

sod it - I'm sticking with the old trout - it's not worth the hassle

[vetran]

Change the law.

I think the difficulties associated with divorce are the secretive aspect of judgement and the fact it doesn't seem to start as a level playing field gender skews the decisions, whilst I appreciate private items should remain private most of us on this forum are accustomed to thinking logically and the published decisions don't make sense.

I would think a Flow Chart directing the decisions made in a standard divorce case would be sensible. Debating this in Parliament and publicly would remove much of the mysticism. Currently the percieved outcome is that the Wife gets the house & kids so she can move her new man in and give up work (if she ever did), the husband gets the bedsit, a lifelong dependant ex partner who has no incentive to work and limited visitation rights.

OK it sounds a little cold creating a flowchart but if people could see the decision tree then they could fit into it. Shared custody should be the default & seperation of the assets should occur almost immediately so that the one that gets the kids doesn't retain the family home and a nice little pension. Payment should be in trust for the children not to the ex partner. The court / social services should review the decision at each major milestone (Children starting school - why haven't you got a part time job?, Children starting work why can't they live part time with other partner etc).

I would also suggest step fathers / mothers are subjected to the same rigourous tests as professional child minders to decrease the likelehood of child abuse. Parents that have lovers to stay should only be allowed to do that when the children are at the other parent, until they are checked out. That would stop the endless procession of dodgy parent figures that pass through some broken families.

The suggestion that by becoming a 'Housewife' the wife / husband has effectively given up her career is not supportable in practice. If the wife had a career and professional qualifications prior to marriage & child bearing its likely that they can return albeit at a lower level than they would have if
they had continued without children. There are plenty of statistics that would allow a divorce court to calculate the projected career earnings and include that as part of the settlement decision. Conversely many parents may achieve more if they were unencumbered by a spouse or children, as can be seen by the large number of 'high fliers' that are childless and alone, maybe we should penalise ex partners for dragging the main bread winner down?

The idea a person should marry and divorce with no children involved and be entitled to half the fortune when they had no part in producing it is laughable. In 'no dependant' divorces the individuals wealth at the start of the marriage should be removed from the equation and any increase in wealth should be divided according to effort. Any settlement should be final and alimony should not be paid.That would put a few gold diggers out of business.

Support should stop when children reach 18, if the supported person needs money after that they can get a job like everyone else. If a parent wishes to continue supporting children after 18 then they may by paying the money direct to the child or voluntarily. Support should be reduced when its reasonable for the supported person to get a job (School age kids, over 12 / 13 able to look after themselves until carer comes home).

Marriage is no longer a contract entered into by men and unwilling brides, A swap of a hymen for wealth. It is a joint decision which both parties go into with their eyes open the law should reflect that. Sharing earnings so that the carer can look after the children is part of parenting, paying so that an ex partner doesn't have to work seems like extortion.

Obviously some cases would fall outside the net and need to go to court, but the majority would fall within and could be decided without legal council and just need rubber stamping by a court -think of the savings. My limited knowledge (happily married but relatives & friends have been through it) of divorce is that it soon becomes very confrontational and unpleasant which can't be good for anyone especially the children.

Also if the way out for the non working spouse is less attractive than marriage then they may actually consider working to improve the marriage instead of filing for divorce, the majority of divorces are requested by women because most men know they will be penniless if they divorce.

Obviously if the relationship is violent all bets are off and the guilty party who is just as likely to be female despite what the propaganda says should be dealt with as the criminal they are.

[JonnoWeb]

I would also suggest step fathers / mothers are subjected to the same rigourous tests as professional child minders to decrease the likelehood of child abuse. Parents that have lovers to stay should only be allowed to do that when the children are at the other parent, until they are checked out. That would stop the endless procession of dodgy parent figures that pass through some broken families.

Just a small observation, my wife is a registered child minder, and so we both had to have a check from the local Care Commission (more like cup of tea and a quick chat), and have a Full Disclosure check run against us. This was a joke, I actually got a call from them asking if I had ever worked as a plumber in Sunderland or lived in Hemel Hempstead , and I said no, so they said OK we'll pass you then. If I had, what was to stop me lying.

I cetainly wouldn't describe the checks as rigourous. It certainly made me thankful that we don't have to leave our kids with child minders anyway.

[lukemg]

Don't know about anyone else but threads like this make me terrified of getting married. The prospect of it failing after a few years and losing half of everything you have built up, even if it is her idea, which would probably mean you working an extra 10-15 years to get by is a shocker.
Kids in the equation - fair enough, you pay a fortune for them if they live with you, it is likely to be a similar amount if they don't.
As for the wife, only fair solution I can see is to discount assets when the marriage started and divide up equally anything from that date e.g. house equity, savings, investments, pensions (reluctantly). Otherwise, she literally has him by the b*ll*cks from day one and all women are capable of ripping them off.
Otherwise, make sure you snag one with comparative assets of her own, house or inheritance (she will have spent anything but these) etc. It's a cold way to look at things but the percentage of break-ups leave little room to be sentimental.
Of course people are happy to chuck everything in a shared pot at the start, but if you end up in a bedsit and some 'wayne' is p*ssing in your pot because the missus has changed her mind about you, it doesn't seem quite as fair.
Yeah, I know plenty of blokes score something younger and bail, that's why you get half of everything amassed during the marriage.
I suspect the reason this isn't done is that the state is terrified of assuming any burden to look after the non-earner so wants this to be done by the earner for ever !

[NotAllThere]

No, threads like this make me terrified of divorce, not marriage.

[vetran]

Just a small observation, my wife is a registered child minder, and so we both had to have a check from the local Care Commission (more like cup of tea and a quick chat), and have a Full Disclosure check run against us. This was a joke, I actually got a call from them asking if I had ever worked as a plumber in Sunderland or lived in Hemel Hempstead , and I said no, so they said OK we'll pass you then. If I had, what was to stop me lying.

I cetainly wouldn't describe the checks as rigourous. It certainly made me thankful that we don't have to leave our kids with child minders anyway.

sorry having suffered the same fate I was slightly tongue in cheek there. But at least a check against the sex offenders register and the known to police list would help in many cases. Seems that some ex's like a bit of danger and nutters and perverts seem to prey on divorcees.

[WindyAnna]

I would also suggest step fathers / mothers are subjected to the same rigourous tests as professional child minders to decrease the likelehood of child abuse. Parents that have lovers to stay should only be allowed to do that when the children are at the other parent, until they are checked out. That would stop the endless procession of dodgy parent figures that pass through some broken families.

I sort of agree but how the f**k would you police it? Mom goes out on the p*ss, has a few and decides she'll boink the first bloke who is prepared to take her - what does she do? Call the emergency 0870 number for checking out potential sh*gs in a hurry before taking him back???

Before someone moves in would be easier to manage and seems more reasonable.

I don't understand why to adopt a child you have to go through a million types of rigour (sometimes only to be refused for the most fatuous of reasons) but you can just marry someone with kids and automatically win the right to be the adoptive parent of those kids.

[BrilloPad]

Don't know about anyone else but threads like this make me terrified of getting married.

hallelulah! a man with some common sense.

<gives lukemg firm hand-shake>